Blackwell v Regina - [2011] NSWCCA 93 - NSWCCA 2010 case summary — Zoe

NSWNSWCCA

Blackwell v Regina

[2011] NSWCCA 93

Court of Criminal Appeal (NSW)|2010-08-23|Before: Beazley JA, James J, Hall J

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Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2010-08-23

Before

Beazley JA, James J, Hall J

Catchwords

CRIMINAL LAW - wrong direction on alternative count - whether miscarriage of justice - whether jury if properly instructed would have returned verdict on principal charge

Source

Original judgment source is linked above.

Catchwords

CRIMINAL LAW - wrong direction on alternative count - whether miscarriage of justice - whether jury if properly instructed would have returned verdict on principal charge

Judgment (25 paragraphs)

[1]

Rudd (2009) 23 VR 444 Regina v Zamagias [2002] NSWCCA 17 Stanton v R [2003] HCA 29; (2003) 198 ALR 41 The Queen v Nguyen [2010] HCA 38 Weiss v the Queen [2005] HCA 81; 224 CLR 300 Category: Principal judgment Parties: Shane Gregory Blackwell (Appellant) Regina (Respondent) Representation: T Game SC; D Barrow (Appellant) J Pickering (Respondent) O'Brien & Hudson (Appellant) Solicitor for Public Prosecutions (Respondent) File Number(s): CCA 2008/10926 Decision under appeal Jurisdiction: 9101 Date of Decision: 2009-04-24 00:00:00 Before: Hock DCJ File Number(s): 2008/11/0655

[2]

Judgment 1BEAZLEY JA : On 18 December 2008, the appellant was found guilty by a jury of the offence of maliciously inflict grievous bodily harm with intent contrary to the provisions of the Crimes Act 1900, s 33(1)(b). The offence carries a maximum penalty of 25 years imprisonment with a standard non-parole period of 7 years. 2The trial judge, Hock DCJ, sentenced the appellant to imprisonment for a total term of 9 years with a non-parole period of 6 years dating from 8 December 2008. The non-parole period will expire on 7 December 2014. 3At trial, the Crown relied upon an alternate count of maliciously inflict grievous bodily harm contrary to the Crimes Act , s 35. Section 35 is a statutory alternative to a count under s 33 and accordingly it does not have to be stated on the indictment.

[3]

Background facts 4The offence was committed in the early hours of 13 October 2007 at Scruffy Murphy's Hotel, Sydney, when the victim, Daniel Ward, was struck in the face with a glass, which broke and caused severe injuries resulting in the loss of Mr Ward's left eye. Mr Ward was at the hotel with a number of fellow off-duty police officers, having arrived there at about midnight. Prior to that, Mr Ward had been at a bar in the city attending a farewell for a fellow police officer. By the time he arrived at Scruffy Murphy's Hotel, he had consumed about 8 glasses of beer and said he was " moderately affected by alcohol ". The other police officers with him at Scruffy Murphy's had also consumed a quantity of alcohol. 5The glassing incident occurred at about 3:20 to 3:30 am. There was no dispute that the appellant was at the hotel. The dispute at trial related to the identity of the assailant. The Crown case that the appellant was the assailant was based upon the following: (1) Direct identification evidence given by a police officer, Kylie Brooks, who was then off-duty and who said she witnessed the appellant slam a glass into Mr Ward's face. She said she immediately grabbed the appellant and detained him physically until on-duty police officers arrived and formally arrested the appellant. (2) Identification evidence of an independent witness, Paul Todd, who said he saw a person approach the female off-duty police officers on the dance floor, saw one of the female police officers push that person away and then saw the same person move his arm, holding a glass, into Mr Ward's face. He then saw this person immediately being restrained by one of the off-duty female police officers. (3) DNA evidence, which established that blood consistent with Mr Ward's blood was found on the side of the appellant's shoe. (4) An admission by the appellant who, after being asked by the proprietor of the hotel, Malcolm McGuiness, why he had done such a cowardly thing, responded, " I just wanted to ". (5) CCTV evidence from Scruffy Murphy's surveillance system which showed the appellant, some time prior to the commission of the offence, approaching the female off-duty police officers, and also, shortly prior to the offence, purchasing a drink at the bar and obtaining two glasses. (6) Motive, in that Mr Ward had spoken to the appellant immediately before the incident as a result of the appellant having approached the female police officers on several occasions, causing annoyance to them. Mr Ward said to the appellant, " Mate, we're all coppers, she's not interested, so how about you fuck off ". The prosecution case was that as Mr Ward turned to walk away, he was struck by the glass. 6The appellant gave evidence. In his evidence in chief, he said he did not strike Mr Ward. In cross-examination, he said he had no memory of any such incident.

[5]

The evidence 9Mr Ward gave evidence that during the time he was at the hotel, he and his friends had been standing at the edge of the dance floor. During this period, he noticed a Caucasian male, about 175-185 cm tall, of medium build, with scruffy hair with blond tips. He said the person was intoxicated and on several occasions approached the group of off-duty female officers. Each time he did so, the women moved in towards each other, to make it obvious to the person that he was not welcome. Mr Ward saw the person approach the group again and appear to put his hands around the waist of Mr Ward's colleague, Ms Brooks, who pushed the person away and said something to him. The person went away, but returned and again approached Ms Brooks. Again, Mr Ward saw Ms Brooks say something to the person. Mr Ward stepped forward, put his arm around Ms Brooks' back and tried to put himself between her and the person. Mr Ward said to him, " Mate, we're all coppers, she's not interested, so how about you fuck off ". Mr Ward said the person stared at him for a second and that he, Mr Ward, started to lead Ms Brooks away, but before he could complete his first step, he felt a blow to the side of his face. 10Mr Ward was taken by ambulance to Sydney Eye Hospital, where he underwent surgery. He had further surgery on 19 October 2007. He is now completely blind in his left eye and wears a prosthetic eye. He also required sutures to a laceration that started above his left eyebrow, went across the eyelid, down alongside his nose, and cut the artery along the side of his mouth and then travelled back up along the left hand side near his ear. Mr Ward gave evidence that at the time he was struck to the left side of his face, the only other person within 3 m of him, apart from his colleagues, was the person whom he had described. 11For reasons I explain below, it is not necessary to examine the challenges made to the evidence of Mr Ward, or any of the other prosecution witnesses in their cross-examination. 12Ms Brooks had also attended the farewell function at the city bar before travelling to Scruffy Murphy's Hotel. She had also consumed a number of drinks and described her level of intoxication as " moderate ". At Scruffy Murphy's Hotel, Ms Brooks observed one of her colleagues, Ms Martens, having an argument with a male on the dance floor. About half an hour later, the same person started to harass Ms Brooks, coming up behind her, touching her on her waist and trying to dance with her. The first time he did so, Ms Brooks flicked his hand away and moved closer into her group of friends. The second time he approached her, she removed his hand off her waist and turned her head and said, " No ". He approached her again some 5 to 10 minutes later and she told him that they were police officers and to leave her alone. He came up to her another time, when again, she told him to leave her alone. Others in the group, including Mr Ward, stopped dancing and stood with her, telling him to leave her alone. 13Ms Brooks said that the man then slammed a glass into Mr Ward's face and started to walk around to her left, trying to get away. Ms Brooks grabbed him by his right leg and called out for other people to help her. Others grabbed his upper body and got him to the ground. Security officers then arrived and took over, removing the man to a stairwell. 14Ms Brooks saw Mr Ward on the ground with blood pouring from his face. The police arrived shortly afterwards. She described the action of the assailant as being " like a shot put kind of movement from his chest straight into [Mr Ward's] face ". She saw the glass shatter and beer and glass went over the left side of her face and neck. In cross-examination, Ms Brooks agreed the assailant appeared to be " well intoxicated ", much more so than she was. 15A statement of Melissa Martens, one of the off-duty police officers at Scruffy Murphy's Hotel, was read to the Court. In her statement, she recounted the circumstances in which the man had approached her group, including making a sexual approach to her. She said that Mr Ward " took a step closer towards " Ms Brooks and had a conversation with the person, but " was not aggressive " towards him. Ms Martens said that " [a]ll of a sudden, a lot of liquid " hit her in the face. She then saw Mr Ward stumbling, with his left hand holding his eye. 16Natalie Barber was also a police officer who had attended the farewell in the city before going to Scruffy Murphy's Hotel. She had been on the dance floor and had seen the male person approach Ms Brooks on three occasions. Ms Barber said that she told this person to go away on two occasions. She said that she then turned around to get her drink, when she heard Ms Brooks yell, " get him ". When she turned back, she saw Ms Brooks holding the person who had previously tried to dance with her. Ms Barber assisted Ms Brooks to restrain the person and they all fell to the dance floor. 17Prudence Burgun was another police officer who was at Scruffy Murphy's that night, having previously been at the farewell party. She gave evidence of a person with short blonde scruffy hair, approximately 6 feet tall and of a stocky build, approaching the group on several occasions and harassing them. However, she left before the incident subject of the charge. 18There were two non-police witnesses who gave evidence relating to the incident. Paul Todd arrived at Scruffy Murphy's Hotel after midnight. He said he saw a male person go up behind a group who were standing together. Mr Todd said he saw a male person approach one of the females in the group on two occasions. He saw other females in the group turn " to support the blonde girl ". He then saw a man from the group walk towards the person. Mr Todd said he saw " an outstretched arm come from the man that had approached the females. And that went straight into the face of the guy that walked over to support the girls ". 19Mr Todd said he saw something that looked like a glass in the hand of the man with the outstretched arm. He saw the victim move backwards quickly, with his hand on his head. He saw the man with the outstretched arm remonstrating with the three females and he saw the blonde female grab the man. He saw the victim with blood on his hand and running down his arm. Mr Todd walked the victim out of the dance floor area and found a security guard who directed them to the toilet area. Mr Todd said that as the incident happened, he heard a " crack ", not a thud, and that he had heard this noise before when someone was hit with a glass. 20There was a significant challenge to Mr Todd's evidence in cross-examination, particularly in relation to his identification of the appellant. Having regard to the appellant's acceptance on the appeal that there was evidence sufficient to identify him as the assailant, it is not necessary to analyse the challenge to Mr Todd's evidence. 21The other non-police witness to the incident was John Webster. He had arrived at Scruffy Murphy's Hotel at about 9 pm to 9:30 pm and left at 5 am. He consumed a large quantity of alcohol during that period (about 20 drinks of bourbon and coke) and described his level of intoxication at 3 am as about four out of 10 and at 5 am as about eight out of 10. His evidence essentially corroborated the evidence given by the off-duty police officers, of a male person approaching the group and their indicating to him that he was not welcome. In particular, he observed a male person approach the dance floor where the off-duty female police officers were dancing and he also saw the same person place his hand around the " hip region " of the " blonde girl " (a description which fitted Ms Brooks). 22Mr Webster saw the male who was with the group of females take a couple of steps towards the females and attempt to move the male person on in " a non-aggressive way ". Mr Webster said that he then heard a popping sound and looked in the direction of the group. He saw a male holding his face and moving backwards. When he took his hands away, Mr Webster observed a cut around and underneath the male person's eye. He also saw the other male person being wrestled to the ground by security staff and saw them take that person away through a side door. Mr Webster said that when this happened, the blonde girl moved backwards. Mr Webster put his hand up to stop her and observed that her shoulder felt wet. This was consistent with Ms Brooks' evidence that the beer from the glass spilled onto her. 23One of the security guards, Liolasa Alaalatoa, took hold of the appellant until the police arrived. He gave evidence that the appellant " wasn't that drunk ". In his police statement, Mr Alaalatoa had said that when the appellant sat down, he had " passed out like he was asleep ". Mr Alaalatoa explained in cross-examination that he meant the appellant didn't want to talk, that he had just sat down and closed his eyes. 24Security guards Aaitui Siofele and Nathan Thompson also gave evidence that the appellant was not intoxicated. Nathan Thompson said he thought the appellant had " had a couple of drinks but wasn't 'wasted' ". 25Other security guards on duty that night gave evidence, but not in respect of matters that are relevant to the issues raised on the appeal. 26The licensee of the hotel, Malcolm McGuiness, was at the hotel when the incident occurred and was notified by one of the security guards. He first went to the toilets and saw Mr Ward, who was being assisted. He saw two of the security guards detaining the appellant. Mr McGuiness then asked the appellant " why he had done such a cowardly thing ". The appellant's response is as recorded above. Mr McGuiness also expressed the opinion that the appellant was not intoxicated: he said that the appellant was not slurring his words, was not falling over, or in any way showing signs of intoxication. He said that the appellant did not lose his balance and he wasn't crying or mumbling. Mr McGuiness was cross-examined particularly with respect to whether the appellant had made the statement, " I just wanted to " to him. He adhered to his evidence that the comment had been made. 27Detective Senior Constable Veitch attended at the hotel at about 3:30 am. He gave evidence that the entry in the policy custody records in relation to the appellant was, " When arrived at charge room exhibited signs of moderate to serious intoxication evidenced by unsteady on feet, smell of alcohol, glassy eyes, slurred speech ". Detective Veitch spoke to the appellant at 7 am and determined that he was fit and proper to be interviewed. 28Carla Bleathman gave evidence in the appellant's case. She said that in the week leading up to the incident, the appellant had been staying at her apartment at Waterloo and that during this time the appellant was drinking a lot. On the day before the incident, at about 5.00 pm, she observed the appellant to be quite drunk. The appellant continued to drink at Ms Bleathman's house until about 9.00 pm, when he and two friends went to the pub across the road. At the time the appellant left, Ms Bleathman observed him to be drunk. He was slurring his words, staggering and being quite loud. 29At 11.00 pm, Ms Bleathman phoned the appellant but he was slurring his words and she could not understand him. He hung up on her. She tried to phone him at 2.00 am but he did not answer. At about 5.00 am one of the appellant's friends came to her apartment and told her that the appellant had been arrested. The appellant phoned Ms Bleathman at about 8.30 am. Ms Bleathman agreed in cross-examination that the appellant said he " didn't do it " because he did not remember doing it. The legislative scheme 30As stated above, the appellant was charged on indictment with an offence under the Crimes Act , s 33. At trial, an alternate count, purportedly under the Crimes Act, s 35, was left to the jury to consider. The incident occurred on 13 October 2007. On 27 September 2007, assent was given to the Crimes Amendment Act 2007. A number of provisions of that Act were commenced on the date of assent, including a provision amending the Crimes Act 1900, s 35: see the Crimes Amendment Act , s 2(1). Those provisions not commenced on 27 September 2007 came into force on 15 February 2008, the date of proclamation: see the Crimes Amendment Act , s 2(2). 31The Crimes Act , s 33 (in respect of which the appellant was charged in the correct terms) provided: "33 Wounding etc with intent to do bodily harm or resist arrest Whosoever: maliciously by any means wounds or inflicts grievous bodily harm upon any person, or maliciously shoots at, or in any manner attempts to discharge any kind of loaded arms at any person, with intent in any such case to do grievous bodily harm to any person, or with intent to resist, or prevent, the lawful apprehension or detainer either of himself or herself or any other person, shall be liable to imprisonment for 25 years." 32Prior to the commencement of the provisions of the Crimes Amendment Act , s 35 was in the following terms: "35 Malicious wounding or infliction of grievous bodily harm (1) Whosoever maliciously by any means: (a) wounds any person, or (b) inflicts grievous bodily harm upon any person, shall be liable to imprisonment for 7 years ..." 33" Maliciously " was defined in s 5 to mean: "... Every act done of malice, whether against an individual or any corporate body or number of individuals, or done without malice but with indifference to human life or suffering, or with intent to injure some person or persons, or corporate body, in property or otherwise, and in any such case without lawful cause or excuse, or done recklessly or wantonly, shall be taken to have been done maliciously, within the meaning of this Act, and of every indictment and charge where malice is by law an ingredient in the crime." (emphasis added) 34Section 33 was amended by the Crimes Amendment Act , Sch 1 [4], however, the new provision did not come into force until 15 February 2008. Also from 15 February 2008, the term " malicious ", including the definition of " maliciously " in s 5, was omitted from the Crimes Act : see Crimes Amendment Act , Sch 1 [2]. 35However, as and from 27 September 2007, pursuant to the Crimes Amendment Act , Sch 1 [7], s 35 was repealed and replaced with a new s 35 (hereinafter referred to as " s 35 as amended ") which, so far as is presently relevant, was in the following terms: "35 Reckless grievous bodily harm or wounding ... (2) Reckless grievous bodily harm A person who recklessly causes grievous bodily harm to any person is guilty of an offence. Maximum penalty: Imprisonment for 10 years." 36This was the alternate offence which should have been left to the jury.

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The trial judge's directions to the jury 37The trial judge directed the jury in respect of the count on the indictment, being the offence under s 33 and on the alternative s 35 charge in the following terms: "... firstly, [the appellant] inflicted grievous bodily harm to [Mr Ward] and, second, the act was done maliciously and, thirdly, that the act was done with the intention of causing grievous bodily harm to [Mr Ward]. You will see that that count or charge really follows the words in the indictment, the charge on the indictment. You will see there underneath that an alternative count or charge which is not on the indictment. And you will see straightaway that the alternative charge is a repetition of the first two ingredients or elements of the charge on the indictment but the third element is missing." 38Her Honour's reference to " there underneath " was a reference to MFI 27, which was a one page document provided to the jury setting out what were said to be the elements of the offences under s 33 and s 35. Up to this point in the summing up, her Honour had followed the wording in MFI 27, which was in the following terms: "The Crown must proved beyond reasonable doubt that on 13 October 2007 at Sydney:

[the appellant] inflicted grievous bodily harm to [Mr Ward]; and
the act was done maliciously; and
the act was done with the intention of causing grievous bodily harm to [Mr Ward]. Alternative Count The Crown must prove beyond reasonable doubt that on 13 October 2007 at Sydney:
[the appellant] inflicted grievous bodily harm to [Mr Ward]; and
the act was done maliciously. "Maliciously means intending to cause some physical injury. Grievous bodily harm means bodily injury of a really serious kind. Intoxication is not to be taken into account in (2) but is to be taken into account on (3)." 39The trial judge continued to direct the jury following the structure of MFI 27, as follows: "Now you will see I have defined maliciously at the bottom of the page for you. It means intending to cause some physical injury, that is, the Crown must satisfy you that at the time [the appellant] inflicted grievous bodily harm to [Mr Ward] he did so intending to cause some physical injury ... At law in the context of this particular charge maliciously means doing an act intending to cause some physical injury and without lawful cause or excuse." 40Her Honour explained further that as no question of lawful excuse was raised, the issue for the jury in respect of this second element of the s 33 offence was whether the appellant " intended to cause some physical injury to Mr Ward at the time he thrust the glass into Mr Ward's face ". 41Her Honour then directed the jury in respect of the third element in the following terms: "... the Crown must prove the intention is to cause grievous bodily harm. That is really serious bodily injury." 42Her Honour explained the difference between the third element and the second in terms that in respect of the second element, the Crown must prove that the intention is to cause some physical injury, whereas the additional aspect of the third element meant that the intention required to be proved is an intention to cause grievous bodily harm. 43Her Honour then directed the jury in respect of the alternative charge as follows: "[Assuming you are satisfied beyond reasonable doubt of the first and second element of the s 33 charge, but] you are not satisfied beyond reasonable doubt of the third element, your verdict is guilty of the alternative charge ... If you are satisfied beyond reasonable doubt ... of all three elements your verdict is guilty of the charge on the indictment." 44The jury retired to consider their verdict at 12.38 pm on 17 December 2008. At 3.57 pm they returned with a note which asked, " What are the consequences of the jury not being unanimous on the third element, i.e. intent? ". Her Honour stated she was not able to answer that question at that stage, as it was early in their deliberations and asked them to continue. The jury returned to the Court again at 4.18 pm, having sent in a note that one of the members of the jury had to leave and asking to resume the following morning. The jury was excused for the night at 4:20 pm. It was indicated to the jury that they could agree to resume at a mutually acceptable time, such as 9 am or 9:30 am. The jury returned its verdict at 10:40 am on 18 December 2008. 45The appellant contended that having regard to the terms of s 35 as amended, the direction on the alternative count should have been: "The Crown must prove beyond a reasonable doubt that on 13 October 2007 at Sydney: (i) [the appellant] caused grievous bodily harm to [Mr Ward]; and (ii) the act was done recklessly." (emphasis added) The appellant submitted that the proper test as to recklessness was that the accused person had foresight that injury would probably result from the accused's action: see R v Campbell [1997] 2 VR 585. 46The Crown conceded that her Honour's direction to the jury on the alternative count was wrong. A direction should have been given as to the reckless infliction of grievous bodily harm, not the malicious infliction of bodily harm. No objection was taken at trial to the directions given in respect of the alternative count and it would appear that all parties and the trial judge proceeded under a misapprehension that s 35 had not been amended. Accordingly, leave to raise this ground is required: the Criminal Appeal Rules, r 4. Given the admitted error, leave should be granted.

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Was there a miscarriage of justice in the jury being directed on the wrong alternative count? 47The first question on the appeal is whether, given the Court's wrong direction on the alternative count, there was a miscarriage of justice in circumstances where the appellant was convicted on the principal charge. 48Pursuant to the Criminal Appeal Act 1912, s 6(1) the Court is to set aside a conviction on the ground of a wrong decision of any question of law, or where on any other ground whatsoever there was a miscarriage of justice. The court may nonetheless dismiss the appeal, if it considers that no substantial miscarriage of justice has actually occurred. This qualification to the requirement that the court set aside the conviction if there has been a miscarriage of justice is routinely referred to in the case law as " the proviso ". 49The overriding requirement of the criminal justice system is that an accused person have a fair trial according to law. If there has not been a fair trial there will have been a miscarriage of justice. A fair trial includes the entitlement of an accused person to have the jury directed in accordance with law: see Pemble v The Queen [1971] HCA 20; 124 CLR 107 per Barwick CJ, at 117. As Barwick CJ explained, this involves directing the jury the jury as to the facts which might lead to an alternate available outcome other than the specific offence charged. Subject to the application of the proviso, an accused person who has not had a fair trial will be entitled to have a conviction set aside. 50The question as to whether there has been a miscarriage of justice has been considered in circumstances where an alternative count should have been but was not left to the jury. Whether or not there has been a miscarriage of justice depends upon whether the appellate court is satisfied that a jury properly instructed, including on the alternative charge, would necessarily have returned a verdict on the principal charge: see Gilbert v R [2000] HCA 15; 201 CLR 414 and Gillard v R [2003] HCA 64; 219 CLR 1. 51In Gilbert the appellant was charged with murder. However, the jury was erroneously instructed that there was no possibility that the appellant could be found guilty of manslaughter. The jury convicted the appellant of murder. On appeal to the High Court, the Crown submitted that as the jury had been correctly directed in respect of the elements of murder, the verdict demonstrated that they were satisfied of all the elements of murder, including the higher state of knowledge required for murder, as opposed to manslaughter: see R v Evans and Lewis [1969] VR 858 at 871. This proposition was rejected. Gleeson CJ and Gummow J, at [19], adopted the following statement of principle by Lord Tucker in Bullard v The Queen [1957] AC 635 at 644: "Every man on trial for murder has the right to have the issue of manslaughter left to the jury if there is any evidence upon which such a verdict can be given. To deprive him of this right must of necessity constitute a grave miscarriage of justice and it is idle to speculate what verdict the jury would have reached." See also R v Jackson [1993] 4 SCR 573 at 593. 52In Jackson , the question whether the proviso should apply in such circumstances was said to be: "...whether it is clear that a jury, properly instructed, would necessarily have returned a verdict of murder." ( Jackson per McLachlin J) 53Callinan J, who agreed with Gleeson CJ and Gummow J that there had been a miscarriage of justice, stated, at [101]: ...It is contrary to human experience that in situations in which a choice of decisions may be made, what is chosen will be unaffected by the variety of the choices offered, particularly when, as here, a particular choice was not the only or inevitable choice." 54The approach taken in Gilbert was confirmed in Gillard , where Gleeson CJ and Callinan J said, at [27]: " Gilbert decides that it is not an answer to the appellant's argument to point out that, since the jury were properly (albeit conservatively) instructed on the elements of murder, and since they convicted the appellant of murder, there is, on that account alone, no miscarriage of justice." 55Their Honours confirmed, at [28], that the substantial question raised in relation to the proviso in a case where an alternative count should have been but was not left with the jury, was whether a jury, properly instructed, would necessarily have returned a verdict, that is, a verdict on the principal charge. See also R v Nguyen [2010] HCA 38 at [50] where the principle was again confirmed in relation to murder/manslaughter. 56Gilbert and Gillard were both cases where the accused in each was convicted of murder in circumstances where the alternate count of manslaughter should have been, but was not, left to the jury. In Regina v King [2004] NSWCCA 20; 59 NSWLR 515 at 528 Smart AJ considered that the principle stated in Pemble , Gilbert and Gillard was not limited to cases of murder/manslaughter. His Honour considered that this was well established, noting, at [75], that in Evans and Lewis the principle in Pemble , Gilbert and Gillard was stated to apply " where it is fairly open to a jury to convict of a lesser offence than that charged ". Grove J agreed with Smart AJ on this point. 57In King , Grove J stated, at [5], that he considered Gilbert and Gillard clearly established that: "... where there is on the evidence a viable case of an available verdict of guilty of a lesser offence than that charged, failure to give an appropriate direction can amount to an error of law." 58Smart AJ's understanding of the relevant principle appears to have been cited with approval by Wood CJ at CL in R v Jacobs and Mehajer [2004] NSWCCA 462; 151 A Crim R 452 and expressly approved by this Court in Mifsud v R [2009] NSWCCA 313 at [44]-[46], as was the statement of Grove J to which I have referred above: see Mifsud at [47]. 59A slightly different question arose in Quartermaine v R [1980] HCA 29; 143 CLR 595 where the question was whether there had been a miscarriage of justice where the case had been conducted and the jury directed in respect of counts which were different from those specified in the indictment. In that case, the jury convicted the appellant on the charge on the indictment. Gibbs J observed, at [7], that ordinarily where there had been a misdirection of law, the proviso would be applied if the Crown established that if there had been no misdirection the jury would (or must) have come to the same conclusion. This is the same principle which applies where, wrongly, an alternative count had not been put to the jury: see Gilbert and Gillard discussed above. Gibbs J accepted, however, that there might still be a substantial miscarriage of justice if the trial was so irregular that no proper trial had taken place, in that there had been a serious departure from the essential requirements of the law: see Andrews v The Queen [1968] HCA 84; 126 CLR 198, or where the error was so fundamental that the proviso ought not to be applied: Regina v Hildebrandt (1963) 81 WN (Pt 1) (NSW) 143 at 148. 60In Weiss v the Queen [2005] HCA 81; 224 CLR 300, the High Court, at [41]-[47], explained an appellate court's task in the application of the proviso. At [41], the Court stated: "That task is to be undertaken in the same way an appellate court decides whether the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence. The appellate court must make its own independent assessment of the evidence and determine whether, making due allowance for the 'natural limitations' that exist in the case of an appellate court proceeding wholly or substantially on the record, the accused was proved beyond reasonable doubt to be guilty of the offence on which the jury returned its verdict of guilty." (footnotes omitted) 61The Court noted, at [42], that it was not useful to lay down absolute rules to be applied by an appellate court when examining the record other than the three fundamental propositions: the appellate court must itself decide whether a substantial miscarriage of justice had occurred; the task is an objective one; and in undertaking the task, the court must apply the criminal standard of proof. 62Importantly, the Court also said, at [44] and [45]: "No single universally applicable description of what constitutes 'no substantial miscarriage of justice' can be given. But one negative proposition may safely be offered. It cannot be said that no substantial miscarriage of justice has actually occurred unless the appellate court is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt of the offence on which the jury returned its verdict of guilty. ... there may be cases where it would be proper to allow the appeal and order a new trial, even though the appellate court was persuaded to the requisite degree of the appellant's guilt. Cases where there has been a significant denial of procedural fairness at trial may provide examples of cases of that kind ." (emphasis added) Gilbert and Gillard are examples where an accused person was denied procedural fairness in a significant way. 63At [46], the Court also referred to, but did not decide, the question of the application of the proviso to the related question whether: "... some errors or miscarriages of justice occurring in the course of a criminal trial may amount to such a serious breach of the presuppositions of the trial as to deny the application of the common form criminal appeal provision with its proviso." Quartermaine appears to be a case in this category. 64For the reasons I discuss below, I consider that the case under appeal is closer in its facts and identification of relevant error to those cases where there has been a breach of procedural fairness of a significant kind. 65The appellant submitted that this was not a case for the operation of the proviso. He submitted that the effect of the alternative count being put to the jury in this way meant he had been deprived of his right to have the jury consider whether or not he had the requisite intent for the purposes of s 33, or whether the evidence established that he had been reckless within the meaning of s 35(2) as amended.

[8]

Malice and recklessness 66At this point, it is necessary to return to the directions which the trial judge gave as compared to the elements of the offence under s 35(2) as amended. Her Honour directed the jury that " maliciously " meant " intending to cause some physical harm ", which was one of the mental states that fell within the meaning of " maliciously " in the Crimes Act, s 5. "Recklessness" was another mental state which fell within the statutory meaning of " maliciously ". 67The s 5 definition of " maliciously " with its collocation of different types of conduct that fell within it, was cumbersome, if not unmanageable, for trial judges in giving directions to juries and had been subject of adverse judicial comment by judges for a considerable period. The amendments effected by the Crimes Amendment Act were directed to rectifying the difficulties. In the Second Reading Speech, the Attorney General stated: "The bill removes the archaic fault element of 'maliciously' from the Crimes Act and replaces it with the more modern fault elements of 'recklessly' and 'intentionally' where appropriate." 68The Attorney General drew upon the meaning of " recklessly " as explained by Hunt J (as his Honour then was) in R v Coleman (1990) 47 A Crim R 306. In that case, his Honour, dealing with the reference to " reckless " in the s 5 definition of " malicious ", said, at 312-313: "... in statutory offences other than murder, the degree of recklessness required in order to establish that an act was done maliciously was a realisation on the part of the accused that the particular kind of harm in fact done (that is, some physical harm - but not necessarily the degree of harm in fact so done) might be inflicted (that is, may possibly be inflicted) yet he went ahead and acted." (emphasis added) 69This meaning of " recklessly " accords with authority both here and in England where malice is an ingredient of the crime. In R v Stones (1955) 56 SR (NSW) 25 the Court (Street CJ, Roper CJ in Eq and Herron J) said at 471: "Generally speaking, malice aforethought means only intention ... If [a person] applied his mind to the consequences, and without concluding that they would probably happen (which is criminal intent) his state of mind was that he did not care whether they happened or not, that is recklessness. The task of a jury is to infer to what extent the accused appreciated the consequences of his act." (emphasis added) 70In R v Cunningham [1957] 2 QB 396 the English Court of Criminal Appeal approved the following as an accurate statement of the law: "In any statutory definition of a crime malice ... [requires] either: (1) an actual intention to do the particular kind of harm that in fact was done; or (2) recklessness as to whether such harm should occur or not (ie, the accused has foreseen that the particular kind of harm might be done and yet has gone on to take the risk of it)" 71In 1971, the UK introduced legislation creating a statutory offence of Criminal Damage where " a person who without lawful excuse destroys or damages any property ... being reckless as to whether any such property would be destroyed or damaged ". In R v Caldwell [1982] AC 341 Lord Diplock stated that recklessness included a mental state where the accused person " had not given any thought to the possibility of there being any such risk of damage ", as well as a mental state where the person " had recognized that there was some risk involved and had nonetheless gone on to do it " . This involved a departure from the law as stated in Cunningham. 72The correctness of Cunningham was reaffirmed in R v G [2004] 1 AC 1034 at 1059. Lord Steyn stated, at 1059, that in Caldwell the Court should have accepted that foresight of consequences was an essential element in recklessness in the context of damage to property under the previous legislation. His Lordship further stated that the purpose of the 1971 Act was merely to replace the out of date language of " maliciously " with more modern language while not changing the substance of the mental element in any way. Accordingly, foresight of consequences was to remain an ingredient of recklessness in regard to damage to property. In R v Lavender [2005] HCA 37; 222 CLR 67, Gleeson CJ, McHugh, Gummow and Hayne JJ at [40] referred with apparent approval to R v G . 73In Banditt v R [2005] HCA 80; 224 CLR 262 the Court was concerned with the meaning of " reckless " in the Crimes Act , s 61R which provided that a person who had sexual intercourse with another person without the consent of the other person and who was reckless as to whether the other person consented was to be taken to have known that the other person did not consent. Gummow, Hayne and Heydon JJ, stated, at [33], that there was a need to accommodate the term " reckless " as it appeared in this provision to the requisite mental element, that is, knowledge of absence of consent. Their Honours considered that the following comments of Professor Sir John Smith with respect to the 1976 UK legislation, which was introduced following the decision of the House of Lords in R v Morgan [1976] AC 182 were on point in construing s 61R: "If D is aware that there is any possibility that P is not consenting and proceeds to have intercourse, he does so recklessly." 74At [37], their Honours pointed out, as the trial judge had emphasised in his direction to the jury in Banditt , that it is not the reaction of some notional reasonable person, but the state of mind of the appellant which the jury was obliged to consider and that this was to be undertaken with regard to the surrounding circumstances. Their Honours, at [38], expressly rejected the appellant's submission that proceeding with an awareness of a risk of non-consent could not suffice without the " discrete mental state " of, " even if I know, I would continue. It does not matter to me ". 75In R v Grant [2002] NSWCCA 243; (2002) 55 NSWLR 80, at [60] 94, Wood CJ at CL (with whom Spigelman CJ and Kirby J agreed) stated: "As was made clear in R v Stones and R v Cunningham ... and, as s 5 of the Crimes Act also makes clear, crimes of malice require either intention or recklessness, each of which calls for a foresight of the consequences, in addition to the mental element required for basic intent." 76The effect of this line of authority is that where the mental element of an offence is recklessness, the Crown must establish foresight of the possibility of the relevant consequence. Subject to the question of what is the relevant consequence for the purposes of s 35(2), the suggested jury direction in the Criminal Trial Court Bench Book reflects this approach. 77However, the appellant submitted that this Court should apply the decision of the Victorian Court of Appeal in Campbell . In that case, the Court was concerned with the following provision: "A person who, without lawful excuse, recklessly causes serious injury to another person is guilty of an indictable offence. " Hayne JA and Crockett AJA said, at 592: "In our view there is little doubt that the trial judge misdirected the jury. We have no doubt that the appropriate test to apply is that it is possession of foresight that injury probably will result that must be proved. As said by the High Court in its joint judgment in R. v Crabbe (1985) 156 C.L.R. 464 at 469-70: "It should now be regarded as settled law in Australia, if no statutory provision affects the position, that a person who, without lawful justification or excuse, does an act knowing that it is probable that death or grievous bodily harm will result, is guilty of murder ... It is not enough that he does the act knowing that it is possible but not likely that death or grievous bodily harm might result. "Whilst that citation is from a case specifically regarding murder, the same principles are relevant. Indeed the Court of Criminal Appeal in R. v Nuri [1990] V.R. 641 said at 643: Presumably conduct is relevantly reckless if there is foresight on the part of the accused of the probable consequences of his actions and he displays indifference as to whether or not those consequences occur. 78In my opinion, this Court should not follow the Victorian decision of Campbell . That decision is inconsistent with authority in the High Court, New South Wales and in England. The Attorney General expressly referred to the test for recklessness stated by Hunt J in Coleman when commenting upon the proposed legislative changes to s 35. Accordingly, in this case, the jury should have been directed in terms that if the appellant was to be found guilty on the alternative count, they had to be satisfied that he realised that by thrusting the glass into Mr Ward's face, it was possible that grievous bodily harm, that is really serious injury, would be inflicted and yet went ahead and acted. 79In my opinion, the leaving of the wrong alternative count to the jury amounted to a miscarriage of justice. I do not understand the Crown to submit otherwise, or at least so submit with any degree of conviction. Rather, the Crown contended that no substantial miscarriage of justice resulted from the erroneous alternative count being before the jury because the direction the trial judge gave to the jury would be little different from that which he gave. 80This submission was concerned with the question to which I have referred at [76], that is, what is the 'relevant consequence' for the purposes of s 35(2) as amended. Is it foresight of the possibility of some physical harm? Or is it foresight of the possibility of grievous bodily harm? If it is the former, the direction her Honour should have given to the jury would have been little different from that which she gave. If the latter, the jury would have had to have been directed in quite different terms, that is, as to the foresight of grievous bodily harm. 81It is convenient to refer again to the direction given by her Honour in this regard. The direction in MFI 27 in respect of the alternate charge was, relevantly: " Maliciously means intending to cause some physical injury ". On the Crown's submission, had the correct alternate charge been left to the jury, the direction should have been to the effect that they had to be satisfied of reckless foresight of the possibility of some physical injury. The Crown submitted that the direction required for an offence against s 35(2) as amended involved a lower threshold than the direction that was given to the jury, which required that they be satisfied of intention to cause some physical harm, rather than recklessness as to the possibility of some physical harm. 82This submission may have had some force if the suggested direction as to recklessness for the purposes of s 35(2) as amended was correct. However, I do not think that it is. The Crown's submission fails to disengage with the statutory jurisprudence prior to the amending legislation. Both the word 'maliciously' and its defined concepts have disappeared from the statute. Relevantly for present purposes, the statute provides for a offence of " recklessly [causing] grievous bodily harm ". There is no definitional construct within the terms of the provision which governs its meaning. There is a requirement of recklessness, which I have addressed. That is, there must be a foresight of the possibility of something. The recklessness must cause something. That which it must cause is grievous bodily harm. In my opinion, there is no basis upon which that term can be read down to mean " some physical injury ". Although the purpose of the amending legislation was to remove the 'archaic' fault element of offences done maliciously, there is a difference of substance between an intention to inflict some physical harm (the former s 35) and recklessness as to whether grievous bodily harm would be inflicted (s 35(2) as amended) as I have explained. 83The evidence in relation to intoxication and the impulsivity of the appellant's behaviour raised an issue as to the nature of the appellant's intention. The jury's question to the judge reveals that it was actively concerned about that issue. In my opinion, it cannot be said that on the evidence, notwithstanding the error in respect of the alternative count, the appellant must have been convicted on the s 33 count. This was a matter where it was open to the jury to convict on an alternative count of reckless infliction of grievous bodily harm. It is an exemplar of Callinan J's observation in Gilbert , namely, that where there is choice of decisions to be made, the choice actually made will be affected by the choices offered. 84The appellant was denied his right to have the correct alternate charge considered by the jury. For the reasons I have given, I consider that he was thereby denied procedural fairness of a significant kind. It follows, therefore, that the proviso does not apply and the conviction should be set aside. On the basis of my conclusion on this ground, the matter should be remitted for a new trial. 85Strictly, this makes it unnecessary to determine ground 1(b): that the order in which the verdicts were considered was erroneous. However, in deference to the arguments advanced, I express brief views on the submissions advanced on this question.

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Did the trial judge err in the manner in which her Honour directed the jury as to the order that they should consider count 1 (the s 33 offence) and the alternative count (the s 35 offence)? 86I have already referred to the directions that the trial judge gave to the jury which followed the structure of MFI 27. In summary, her Honour referred first to the elements of the principal charge and then to the elements of the alternative charge. The appellant submitted that a jury is entitled to consider the counts in whichever order they wish and they are not constrained to consider the principal charge first and only then to consider the alternative charge if not satisfied as to all the elements of the principal charge. The appellant submitted that the effect of her Honour's direction to the jury was to make the alternative charge a default position which only came into play if the jury was not satisfied of the appellant's guilt on the principal charge. 87At the time of the commission of the offence, s 34 provided: "Where, on the trial of a person for an offence under section 33, the jury are satisfied that the accused is guilty of the wounding, or inflicting grievous bodily harm, mentioned in the indictment, but are not satisfied that the person is guilty of the intent charged therein, they may acquit the person of such intent and find the person guilty of an offence under section 35, and the person shall be liable to punishment accordingly." 88Both at common law and pursuant to statute, it is a condition of the validity of a verdict on an alternative charge that the jury first return a verdict of not guilty on the principal charge: Gammage v The Queen [1969] HCA 68; 122 CLR 444 at [23]. In R v McCready [1967] VR 325, the Court said, at [24], in respect of a provision which made a verdict of assault with intent to commit rape dependent upon the jury being not satisfied that the accused was guilty of the crime of rape and thus in terms to the same effect as the terms of s 34: "The question of his guilt of the alternative charge does not arise unless and until the jury is not satisfied of his guilt of rape, and whilst the jury is in a state of disagreement upon the latter, the accused's guilt of the alternative crime remains irrelevant": 89The Criminal Trial Court Bench Book at 2-200 provides the following suggested direction in the case where an alternative charge is left to the jury: "If you find each of the elements of the lesser offence proved beyond reasonable doubt, but are not satisfied that each element in the more serious offence has been proved beyond reasonable doubt, then you may find [ him/her ] 'not guilty' of the more serious offence and ' guilty' of the other. This option only arises where you all agree that the Crown has not proved the more serious offence beyond reasonable doubt. However, you should not regard this as an invitation to compromise - supposing, for example, that six of you were for a verdict of 'guilty' on the major count and six believed that [ he/she ] was not guilty of anything at all. It would be quite wrong in these circumstances to compromise by convicting [ him/her ] on the less serious charge." (emphasis added) 90This suggested direction was supported by the New South Wales Law Reform Commission, Consultation Paper 4, 'Jury Directions', December 2008. At para 4.71, the Consultation Paper states: "A jury should only return a verdict of guilty on a lesser alternative offence when the prosecution has not proved the more serious offence beyond reasonable doubt. Jurors are not expected to compromise any disagreement by resorting to an alternative verdict." The Consultation Paper then sets out the direction in the Bench Book and continues: "The Court of Criminal Appeal has held that such a direction is sufficient to dispel any suggestion that the jury's verdict may have been the result of compromise. [ CTM v R (2007) 171 A Crim R 371, [48]] On one view, such a direction is probably the only way of avoiding the possibility of compromise." 91In Stanton v R [2003] HCA 29; (2003) 198 ALR 41 the appellant complained that the jury was directed to consider its verdict in a particular order whereas they should have been directed that they could consider the verdicts in any order they wished. The appellant had been convicted of the wilful murder. The only issue in dispute was intent. Four verdicts were technically available, wilful murder, murder, manslaughter and not guilty, although the only two realistically available verdicts were wilful murder and manslaughter. The trial judge directed the jury in terms that they should first consider wilful murder and that if they were unanimously of the view that the accused was guilty of wilful murder, that would be their verdict. The trial judge then said that if the jury was not unanimously of that view, the verdict would be not guilty of wilful murder. That direction was then given in respect of murder, followed by manslaughter in the same way. The trial judge suggested that the jury start their deliberations by a consideration of whether the killing was unlawful. His Honour then directed the jury in respect of the elements of each of the offences. 92The majority, Gleeson CJ, McHugh and Hayne JJ rejected the appellant's argument that these directions dictated to the jury a sequence of deliberation and impermissibly restricted them in the manner in which they might properly exercise their function. However, their Honours accepted that if that was a fair appreciation of the effect of what the trial judge had told the jury, error would be demonstrated. Their Honours said, at [35]: "... jurors are free to organise the individual processes of reasoning, or the discussions as the group, in whatever appears to them to be convenient. The question is whether [the trial judge] might reasonably have been understood to convey anything to the contrary, or whether he was merely informing them of the sequence in which, at the point of final decision, they were to deal with possible verdicts available to them. What he said was: you can't come to consider the alternative verdicts of murder or manslaughter unless you are unanimously of the view that he is not guilty of wilful murder. So, whatever your verdict is on the first charge of wilful murder, it must be unanimous." 93In advancing this ground, senior counsel for the appellant accepted that if the jury had been correctly directed, this ground would not succeed on its own. However, if they were incorrectly directed, as was contended, then the order in which the jury conducted their deliberations might be of more significance. 94In my opinion, there was nothing in the directions given by her Honour which dictated to the jury the sequence in which they were to organise their deliberations. Rather, her Honour's directions explained the elements of the principal offence and of the alternative offence (subject to the error which her Honour made in respect of the terms of the alternative offence). Her Honour also explained to the jury the consequences of not being unanimously satisfied of each of the elements. Had this ground been relevant to the ultimate disposition of the appeal, I would have rejected it.

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Ground 2: the verdict was unreasonable and not supported by the evidence 95The appellant also contended that his conviction should be set aside on the ground that the verdict of the jury was unreasonable or could not be supported having regard to the evidence: the Criminal Appeal Act , s 6(1). 96At trial, as is apparent from the trial judge's directions to the jury, the principal issue was whether it was the appellant who inflicted the injury. On the appeal, the appellant accepted there was evidence available for the jury to conclude that he was that person. The appellant contended, however, that viewed as a whole, the evidence could not support the conclusion beyond a reasonable doubt that the appellant intended to inflict grievous bodily harm upon Mr Ward. This argument centred principally around the appellant's intoxication. 97The evidence at trial was that the appellant was intoxicated at the time of the offence. There was an issue, however, as to the extent of his intoxication. The Crown's position was that the appellant's level of intoxication was not such as to deprive him of the ability of forming the necessary intention, that is, to inflict grievous bodily harm. Its case was that the appellant, some few minutes before the incident, was functioning reasonably, as evidenced by the fact that he was able to communicate with bar staff, had ordered drinks and paid for them with his credit card. The Crown's case in this regard was supported by the CCTV footage. 98The appellant contended, however, that the evidence demonstrated he was in fact very intoxicated. This was the evidence of the off-duty police officers themselves, including Mr Ward; the other witnesses, such as Mr Todd; the arresting police officers, particularly police officer Madden; the police custody records; and both witnesses in the appellant's case. 99The appellant also relied upon the fact that the Crown had not proved intention to cause grievous bodily harm by reference to the manner in which the incident in fact occurred. In this regard, the appellant relied upon the fact that the incident occurred quickly and reactively to a comment made by Mr Ward, giving the appellant little time to form an intention or to consider the consequences of his actions. The appellant's action, it was submitted, was sudden, described by Ms Brooks as a " shot put " like movement. The appellant also relied upon the fact that he had not broken the glass before thrusting it at Mr Ward. 100The appellant also submitted that Mr McGuiness' evidence that he had asked the appellant why he had done such a cowardly thing, to which the appellant had replied " I just wanted to ", did not differentiate between the act being done recklessly or with the required intent. 101The test the court is required to apply in determining whether a verdict is unreasonable or not supported by the evidence was stated in M v The Queen [1994] HCA 63; 181 CLR 487 in the following terms: "... the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty ... But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations." (footnotes omitted) 102In The Queen v Nguyen [2010] HCA 38, the High Court confirmed this approach, stressing at [33], that the question for the appellate court is a question of fact. 103In Knight v R [1992] HCA 56; 175 CLR 495 the High Court considered whether a jury had acted reasonably in determining there was no reasonable possibility the appellant did not intend to commit attempted murder in circumstances where there was competing evidence about the appellant's state of mind. Mason CJ, Dawson and Toohey JJ, when considering whether the jury, acting reasonably, must have entertained a reasonable doubt about the appellant's guilt, said, at [502]: "... the reasoning process which must be employed if the onus of proof beyond reasonable doubt is to remain upon the prosecution is well recognised. As Dixon J said in Martin v Osborne [(1936) 55 CLR 367 at 375] : 'If an issue is to be proved by circumstantial evidence, facts subsidiary to or connected with the main fact must be established from which the conclusion follows as a rational inference. In the inculpation of an accused person the evidentiary circumstances must bear no other reasonable explanation.' " 104Knight was cited in Cutter v The Queen [1997] HCA 7; 143 ALR 498 where Brennan CJ, Dawson and Gummow JJ said, at 501-502: "... The test propounded by Mason CJ, Dawson and Toohey JJ in [ Knight ] was whether the jury (the tribunal of fact), acting reasonably, could have rejected as a rational inference the possibility of the absence of an intent to kill. In the same case, Brennan and Gaudron JJ embraced the test which had been expressed by Gibbs, Stephen and Mason JJ in Barca v R [(1975) 133 CLR 82 at 104] following Plomp v R [(1963) 110 CLR 234 at 252] : 'To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be `the only rational inference that the circumstances would enable them to draw' ". 105The question whether the appellant had the necessary intent can only be inferred from all of the surrounding circumstances. Whilst there was evidence that the appellant was intoxicated, it was very much a matter for the jury to determine whether his level of intoxication was such that he was not capable of forming the relevant intent. Likewise, the circumstances of the incident itself were matters that the jury were required to assess. 106In my opinion, there is no basis to disturb the verdict of the jury. The evidence has been set out in some detail and it is not necessary to repeat it. There was evidence upon which the jury could properly conclude that the Crown had established beyond reasonable doubt that the appellant had the necessary intent for the purposes of the s 33 offence. The Court was not privy to the CCTV footage, although both parties accepted that its effect was as I have stated. That was undoubtedly powerful evidence available to the jury as to how the appellant was conducting himself in the minutes prior to the incident. 107Although there was other evidence that the appellant's level of intoxication may have been high, that evidence needed to be assessed in the context of all the circumstances, which included, at the time that the police officers arrived at the scene, that the appellant had been manhandled both by the off-duty police officers and by the security guards. It was also open to the jury to accept Mr McGuiness' evidence. If they did so, that was also evidence which supported the verdict. 108Having given consideration to the entirety of the evidence, I have concluded that it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of the charge under s 33. I should add that I do not consider this conclusion is inconsistent with the conclusion I have reached on the first issue on the appeal. If the correct alternative charge had been left to the jury, it is possible that the jury may have found the appellant guilty of the alternative charge, which itself is a very serious offence. The appellant was deprived of that possibility. However, that is a different question. As I have stated, there was evidence upon which the jury could convict the appellant of the principal offence.

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Appeal against sentence 109The appellant seeks leave to appeal against sentence. Given the agreement of James and Hall JJ with my reasons, the conviction is to be set aside. Accordingly, it is not necessary to deal with the application to appeal against sentence. 110The trial judge in her remarks on sentence briefly summarised the essential facts surrounding the incident, as well as the injury sustained by Mr Ward as a result of the attack. In determining the objective seriousness of the offence, her Honour took into account the level of injury to Mr Ward. In this regard, her Honour referred to Mr Ward's victim impact statement in which he described his ongoing reaction to his physical injuries as well as his loss of confidence, his hyper-vigilance in social settings and his low psychological state. Her Honour also referred to the other aggravating fact in terms of the objective seriousness of the offence, being the appellant's use of a weapon, namely, the glass that he thrust into Mr Ward's eye. Her Honour observed that the blow was completely unprovoked and unexpected, as at the time that the blow was delivered, Mr Ward was turning away and did not see it coming and therefore, he had no opportunity to protect himself. 111Her Honour considered that the sentence she was to impose must reflect a significant element of general deterrence, as the offence had become so common that the term " glassing " had " regrettably become part of everyday speech ". 112Her Honour then considered the appellant's personal circumstances, noting that he was 25 years of age at the time of the offence. He had three relevant matters on his criminal record, although the first two, which involved engaging in disorderly conduct, were relatively minor. It appears that her Honour also considered a third matter, committing a public nuisance, also as minor. Her Honour noted that these three offences had occurred whilst the appellant was intoxicated. Her Honour did not treat the appellant's intoxication on this occasion as an aggravating factor, noting rather that his level of intoxication had caused him to act out of character. Her Honour accepted that the appellant's intoxication was due to his tendency to binge drink when he was not engaged in his work as a commercial diver, an occupation in which he had been successful. 113Prior to the incident on 13 October 2007, the appellant had suffered a number of traumatic experiences, including a serious accident in which a friend, who was a pillion passenger on a motorcycle the appellant was riding, was killed, and in which he himself was badly injured. The appellant experienced chronic levels of anxiety and other symptoms consistent with a post-traumatic stress disorder response. Two months after the accident, another of the appellant's friends committed suicide, which compounded his grief and trauma. The appellant turned to alcohol and illegal drugs. He sought help from a psychologist in the Navy, which he had joined in about 2002. He was asked to show cause why he should remain in the Navy after returning a positive drug test for smoking cannabis and although by this stage he had apparently mostly ceased illegal drug use, he left the Navy and started working as a commercial diver. 114Her Honour considered the appellant had good prospects of rehabilitation, given his insight and the support he had from family and others in the community. She considered he was unlikely to re-offend and referred to his isolation during incarceration, as his family was interstate. Her Honour found that this constituted special circumstances, as she considered he would benefit from a longer period on parole, this being his first and lengthy period in custody. 115In considering whether to impose the standard non-parole period of 7 years, her Honour found that the offence fell at the midrange of objective seriousness. However, her Honour decided not to impose the standard non-parole period, because she considered that the appellant was unlikely to re-offend; had good prospects for rehabilitation; had expressed genuine remorse; and there were special circumstances. Accordingly, her Honour imposed the sentence to which I have referred, namely, a non-parole period of 6 years imprisonment and a total term of 9 years, both to date from 8 December 2008. 116The appellant submitted that a comparison of the sentence imposed by her Honour with the statistics retained by the Judicial Commission suggested this sentence was towards the top of the range for offences of this type. This, of course, is not illustrative of error and Judicial Commission statistics are, at their highest, of limited guidance only: Bombardieri v R [2010] NSWCCA 161; R v AEM Snr; R v KEM; R v MM [2002] NSWCCA 58. 117The appellant also relied upon the sentencing results in the decisions of Regina v Zamagias [2002] NSWCCA 17; R v Henness [2004] NSWCCA 50; Heron v Regina [2006] NSWCCA 215; and Regina v Jenkins [2006] NSWCCA 412. The Crown submitted that reference to these decisions was not of much assistance. In the first place, this Court stated in R v George [2004] NSWCCA 247; 149 A Crim R 38 at 47 that a comparison with sentences passed in other cases is neither helpful nor justified by the authority to establish that a given sentence was excessive. At the most, " other cases can do no more than become part of a range for sentencing ". In this case, as the appellant conceded, the sentence imposed by her Honour was within the range of sentencing of other offenders. 118Secondly, the Crown submitted that the cases of Henness and Zamagias had been determined before the introduction of the standard non-parole period for this offence, so that it was difficult to use them as relevant comparators. In addition, Zamagias was a Crown appeal, as was Jenkins (prior to the introduction of the Crimes (Sentencing Procedure) Act , s 67). 119In my opinion, her Honour was entitled to consider that the s 33 offence was one in respect of which general deterrence played a role in the sentencing. The incident had also caused very serious injuries to Mr Ward. Notwithstanding that the appellant's personal circumstances indicated that this offence was out of character and he had good prospects of rehabilitation, that he had insight and was remorseful, these factors were the basis upon which her Honour reasoned that a non-parole period less than the standard non-parole period was warranted. This was so notwithstanding her Honour's finding that the objective seriousness of the offence itself fell within the midrange, findings with which I would agree. If the conviction in this matter was otherwise upheld, I would have concluded that no other sentence is warranted in law: Criminal Appeal Act , s 6(3). In that case, I would have dismissed the appeal against sentence.

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(3) Relevant legislative provisions 133The directions to the jury related to both the principal offence under s.33 of the Crimes Act and an alternative statutory offence purportedly under s.35 of the Crimes Act . 134Section 33 had not been amended as at the date of the appellant's assault upon the victim on 13 October 2007. It was subsequently amended in February 2008. 135The alternative offence arising under s.35, however, had, as at the date of the incident, been amended from malicious wounding to reckless infliction of grievous bodily harm. The amendment concerning s.35 arose under the Crimes Amendment Act 2007, Schedule 1[4] (No 38 of 2007). This amending Act amended a number of statutory provisions. The amendment to s.35 took effect as and from 27 September 2007. The penalty for an offence under s.35, by virtue of the amendments, was increased from 7 years imprisonment to 10 years. 136I set out below each of the relevant provisions with which this ground of appeal is directed. 137The provisions of s.33, as at the date of the offence, were as follows:- "33. Wounding etc with intent to do bodily harm or resist arrest Whosoever: Maliciously by any means wounds or inflicts grievous bodily harm upon any person or maliciously shoots at, or in any manner attempts to discharge any kind of loaded arms at any person, with intent in any such case to do grievous bodily harm to any person, or with intent to resist, or prevent, the lawful apprehension or detainer either of himself or herself or any other person, Shall be liable to imprisonment for 25 years." 138The provisions of s.35 before the amending provisions came into operation on 27 September 2007 were in the following terms:- "35. Malicious wounding or infliction of grievous bodily harm. (1) Whosoever maliciously by any means:- (a) wounds any person, or (b) inflicts grievous bodily harm upon any person, shall be liable to imprisonment for 7 years ..." 139Prior to its repeal, s.5 of the Crimes Act defined "maliciously" as follows:- "... Every act done of malice, whether against an individual or any corporate body or number of individuals, or done without malice but with indifference to human life or suffering, or with intent to injure some person or persons, or corporate body, in property or otherwise, and in any such case without lawful cause or excuse, or done recklessly or wantonly, shall be taken to have been done maliciously, within the meaning of this Act, and of every indictment and charge where malice is by law an ingredient in the crime." 140As earlier noted, on 27 September 2007, the Crimes Amendment Act replaced the former s.35 with the following new provisions:- "35. Reckless grievous bodily harm or wounding ... (2) Reckless grievous bodily harm A person who recklessly causes grievous bodily harm to any person is guilty of an offence. Maximum penalty: imprisonment for 10 years." 141In relation to Ground 1(a), the alternative statutory offence should have been left to the jury on the basis of the provisions of s.35 that came into operation as and from 27 September 2007 as set out in the previous paragraph and directions given on that basis. Instead, the jury were provided with directions on s.35 as it stood before 27 September 2007.

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(5) Evidence in the Crown case and trial directions in relation to the offence under s.33 145In relation to Ground 1(a) and Ground 2, it was contended that by reason of the level of his intoxication at the time of the assault the Crown had not discharged the onus of proving to the applicable standard the specific intent required by s.33 - an intention to cause grievous bodily harm to the victim. 146The evidence established that the appellant was intoxicated, indeed was well-intoxicated, at the time of the offence. However, it does not, of course, follow, and it was not contended that, a person who is well-intoxicated is unable to intentionally cause harm of a particular nature, including grievous bodily harm. What had to be assessed by the jury in the present case and which this Court also is required to assess, is the evidence as to the appellant's apparent cognitive capacity immediately before and at the time of the assault. Evidence of the objective circumstances concerning a person's conduct and performance including his or her actions and words may, of course, constitute a sound basis from which that person's intention at the relevant time may be inferred. 147On the issue of the appellant's intoxication and its relevance to the issue of specific intent under s.33, the Crown relied both upon two matters. First, the evidence at trial which it contended established the appellant's cognitive capacity. Second, the directions given to the jury on the significance of intoxication in determining whether the Crown had established, to the requisite standard, the specific intent as an essential element of the offence. In this latter respect, the Crown noted that no criticism had been made of the trial judge's directions on the issue of intent/intoxication. In paragraph 42 of the Crown's written submissions, it was stated:- "42. Therefore, the appellant's intoxication and its interplay with his intent was clearly the crucial area in dispute. Her Honour had given clear directions to the Jury on the significance of intoxication in determining whether the Crown had proved that intent. No criticism is made of her Honour's directions to the jury in this appeal. Her Honour's directions were both in writing and oral and they appear at pp.25 to 29 of her Honour's summing up. An important part of that summing up of her Honour on this question was as follows: 'On the other hand, a person may be considerably affected by alcohol and yet be able to act intentionally. The fact that he may have no recollection of it afterwards does not necessarily mean that he was not acting intentionally. The fact that his judgment was affected so that he acted in a different way from the way in which he would act if he was sober, again does not necessarily mean that he was not acting intentionally.'" 148In relation to the objective circumstances relevant to accused's cognitive capacity, the evidence established the following matters leading up to the assault and the assault itself:- (1) A short time prior to the assault, CCTV footage showed the appellant buying two drinks from the bar, conversing with bar staff and at least one other person, and using a credit card to make a purchase at the bar. (2) In the time leading up to the assault, the appellant made a number of advances to Ms Brooks as follows:- (a) shortly before the incident, the appellant approached Ms Brooks and placed his arm around her waist and tried to dance with her. Ms Brooks rebuffed him; (b) the appellant then went away for a few minutes and returned and approached Ms Brooks again placing his hand on her waist. She again rebuffed him; (c) the appellant approached Ms Brooks a third time when he was told by her that she and her companions were police and to leave her alone; (d) the appellant again approached her - others in her group, including the victim, Mr Ward, told the appellant to leave Ms Brooks alone and to "Fuck off" . (3) The appellant suddenly and with force struck Mr Ward in the face with a glass which shattered causing serious injury to his left eye. In addition to the loss of the eye itself, the victim also sustained a laceration starting above the left eyebrow across the eyelid, down alongside the nose and a cut to the artery along the side of the mouth and back up on the left hand side near the left ear. 149Insofar as it might be said that the appellant struck on the spur of the moment that would not negative intention: Regina v Rehavi (1999) 2 Qd R 640, 642. I accept the Crown's submission that the fact that the appellant's actions may have been impulsive or showed poor judgment does not mean that at the time he assaulted the victim he did not intend to cause really serious bodily harm to him. 150In particular circumstances, where a person assaults another with a glass, the likelihood of an intention having been formed may, depending upon the circumstances, be significantly less than where the glass was first broken and then used to assault the victim. But it could not, on that basis alone, be said that the jury's verdict was unsafe or unreasonable: Rehavi (supra). Cases of severe eye injury/loss of the eye through the forceful use of a glass have resulted in convictions under s.33. See, for example, Regina v Hennessy [2004] NSWCCA 50 and Heron v Regina [2006] NSWCCA 215. On the facts of the present case, the jury were entitled, in my opinion, to find that the blow directed by the appellant at the victim's eye would itself support a finding of the specific intent under s.33. 151In the period not long before striking the victim, the evidence established that the appellant, though well-affected by alcohol, was able to, and did, function with cognitive ability illustrated by his ability to order drinks, to speak to bar staff, to correct the staff member in terms of the number of drinks ordered and in using his credit card to pay for the drinks supplied. As the presiding judge, Beazley JA, has observed at [102], the question as to whether the appellant was intoxicated and, in particular, the level of his intoxication in terms of the appellant's cognitive function was a matter of assessment for the jury and that the CCTV footage undoubtedly provided powerful evidence which was available to the jury as to how he was conducting himself in the minutes prior to the incident. 152Particular matters, including, in particular, those concerning the manner by which serious injury is inflicted, the part of the body to which the assault is directed and the nature of the injury can be critical in determining the interconnection between intent and intoxication. So much was made clear in the approach expressed and applied by Hunt J in Regina v Coleman (1990) 19 NSWLR 467 at 470 wherein his Honour stated:- "The injuries which the victim received certainly amounted to actually bodily harm. The specific intent pleaded, to insert the bottle into the anus of the victim (thus amounting to sexual intercourse as defined), is objectively to be seen in the nature and position of the injuries themselves. The jury was fully entitled to disregard the evidence of intoxication as denying voluntariness, intention to do the physical act involved in the crime, malice (intention to injure or recklessness) and specific intent ..." 153Proof of the mental state accompanying the infliction of injury will very often be by proof of the objective circumstances surrounding its occurrence. In some circumstances injury may be inflicted through an act which is not specifically targeted at a particular person or to a particular part of a person's body. In other cases an assailant's action may be purposeful and specifically directed. Two examples may be given by way of illustration. 154The first example is of a person who throws from a height a heavy object into a quiet suburban street not knowing if there is anyone present in the street below. The object strikes a passer-by causing grievous bodily harm. Such facts may satisfy the lower test of the possibility of grievous bodily harm resulting from such an act - a test which is relevant to an offence involving "recklessness" under s.35. 155The second example, close to the facts of the present case, is of a person, A, who is standing in close proximity to another, B. B says something to A which the latter resents. In anger, A strikes B in the face forcibly with a heavy or sharp object. Depending upon circumstances, including the forcefulness of the assault, very serious bodily injury may be a likely consequence. 156The act of throwing the object in the street in the first example is an untargeted act but nonetheless remains one capable of causing really serious bodily injury, though not specifically directed at any known or specific person. 157In the present case, there were particular aspects associated with the appellant's action in assaulting the victim, Mr Ward, that were relevant to the specific intent - the existence of a motive to injure, the wielding of a potentially dangerous object (the glass) and the striking at the victim' face in the region of the left eye with such force as to cause it to shatter and penetrate the eye. Those matters in combination are clearly relevant in a jury deciding whether the appellant acted knowing or realising its probable consequences, and not merely appreciating possible consequences that may arise from the act. 158Bearing in mind the natural limitations that arise in the case of an appellate court proceedings on the record of proceedings, it is, in my opinion, clear that the particular matters associated with the appellant's striking of the victim, as I have detailed it above, indicate that his action was in the nature of a purposeful or a targeted attack. The appellant's act of slamming the glass into the victim's left eye with such force as to cause it to shatter on the victim's face was evidence from which a jury could conclude that it was an act designed and intended to wound in a very significant way. 159In Regina v Mowatt [1968] 1 QB 421, a case cited by Hunt J in Coleman (supra), the physical act of the accused in that case was described as a "direct assault" . In the course of his judgment, Diplock LJ at 427 observed:- "... In the absence of any evidence that the accused did not realise that it was a possible consequence of his act that some physical act might be caused to the victim, the prosecution satisfied the relevant onus by proving the commission by the accused of an act which any ordinary person would realise was likely to have that consequence ..." (emphasis added) 160Given the sensitive and vital visual functions of the human eye, any forceful or penetrating injury to the eye is, of course, liable to be classed as constituting "grievous bodily injury" . Equally, in terms of foresight of the consequences of such an act, it can, in my opinion, be taken as well within ordinary human experience that a forceful or penetrating injury to the eye will be likely to cause grievous injury to it. 161In the present case, the evidence as to the nature and position of the injuries and the matters that established cognitive capacity in the accused would have, in my opinion, provided the jury with a sound evidentiary basis for discounting the evidence of intoxication as negativing an intention to inflict grievous harm.

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(6) The issue of the failure to direct the jury in terms of s.35 - the issue of miscarriage of justice 162The Crown accepted that the correct alternative count left to the jury should have been one of reckless infliction of grievous bodily harm and not malicious infliction of grievous bodily harm. However, it contended that this error did not give rise to any miscarriage of justice. 163The appellant, on the other hand, contended that, had the jury been properly directed as to the terms of the alternative count, there is a real possibility that the verdict would have been different. 164I set out below a number of principles derived from relevant authorities on the question as to whether a trial judge should direct a jury in relation to an alternative or lesser charge:- (1) In general terms, it is necessary to determine whether any misdirection in failing to direct on an alternative charge can be said to involve or carry what has been referred to as "practical significance" in terms of the possibility of a jury convicting on an alternative verdict: Gilbert (supra) at 420 per Gleeson CJ and Gummow J. Similarly, in applying the proviso to s.6(1) of the Criminal Appeal Act , see Regina v Gulliford (2004) 148 A Crim R 558; [2004] NSWCCA 338 per Wood CJ at CL, with whom Howie J agreed. (2) In a trial by a jury of a serious criminal charge, as a matter of reality, the fact finding by a jury in relation to such a charge can be influenced by the absence of an alternative or lesser charge. (3) Whatever course counsel may see fit to take, no doubt bona fide, but for tactical reasons in what he/she considers the best interests of his/her client, the trial judge must be astute to secure for the accused a fair trial according to law. This involves an adequate direction both as to the law and the possible use of the relevant facts upon any matter upon which the jury could, in the circumstances of the case upon the material before them, find or base a verdict in whole or in part: Pemble v The Queen (1971) 124 CLR 117 to 118. (4) A trial judge is obliged to leave a lesser alternative only if this is necessary in the interests of justice: Regina v Maxwell [1988] 1 WLR 1265 per Mustill LJ. (5) The interests of justice will, however, not be served where the lesser verdict simply does not arise on the way in which the case has been presented, that is, in the light of the issues which arise on the evidence: Maxwell (supra). In other words, there must exist a proper basis before an alternative or lesser offence merits serious consideration by the jury: Regina v King (2004) 59 NSWLR 515, 532 per Smart AJ. (6) It follows that conviction on a lesser offence must be a viable outcome. A trial judge is not always obliged to leave all the alternative verdicts theoretically comprised in the charge of the offence, but need not (and indeed should not) do so unless the alternatives really arise on the issues as presented at the trial: Regina v Fairbanks [1986] 2 WLR 1202 per Mustill LJ at 1205. (7) In deciding whether to leave the lesser offence, the state of the evidence is, accordingly, critical as emphasised in Gillard (supra) at 14 and as re-stated in King (supra) at 535. (8) It follows that a lesser offence should not be left to the jury if the evidence in support of it is slight or the prospect of a conviction on the lesser offence rather than the major offence is fanciful: King (supra) at 535.

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(8) Intention to cause grievous bodily harm versus foresight of possible consequences 168In the consideration of the miscarriage of justice contended for in Ground 1(a), the mental element required for an offence under s.35 ( "... recklessly causes grievous bodily harm" ) must be considered in the context of the facts established in evidence including, in particular, the evidence as to the applicant's acts and his intoxication. 169In the discussion on Ground 1(a) set out earlier, the significance of the evidence as to the matters constituting the attack upon the victim in relation to the specific intent required for an offence under s.33 has been considered. The significance of those facts, of course, would equally arise for consideration when assessing the mental element in an offence under s.35 which imports the notion of recklessness. I will seek to make clear why this is so in the discussion that follows. 170Firstly, as to the mental element constituting an offence under s.35 of the Crimes Act . Beazley JA has examined the relevant line of authority in relation to offences where the mental element of the offence is recklessness, stating that the Crown must establish in relation to s.35 foresight of the possibility of the relevant consequence, namely, grievous bodily harm. I respectfully concur with that observation. For the appellant to have been found guilty of an offence under the amended s.35, the jury would have had to have been satisfied in terms of "recklessness" that he realised that by thrusting the glass into Mr Ward's face, it was possible that grievous bodily harm, that is really serious bodily injury, would be inflicted and that notwithstanding he went ahead and acted. 171It is apparent, in my opinion, as I earlier indicated, that the evidence as to the forceful use of the glass in the manner of a weapon directed at the left eye region of the victim causing the glass to shatter on impact, the nature of the injuries resulting from that act and the extent of the injuries as well as the evidence as to the appellant's cognitive capacity provides, in my opinion, the basis for the conclusion that the appellant had the specific intent required by s.33 in that he realised that his act towards Mr Ward would, or would very likely cause him grievous bodily harm. 172The Crown case that the appellant acted with intent to do grievous bodily harm to Mr Ward was a strong one. On the evidence, the case went, in my assessment, well beyond establishing recklessness in terms of a contemplation as to the possibility of grievous bodily harm resulting from his attack upon Mr Ward. In other words, this was a case, in my opinion, in which the very actions of the appellant and the nature, extent and location of the injuries he inflicted in combination constituted strong evidence of the necessary intention under s.33. 173If any further evidence was required as to the appellant's capacity and intent (and I do not believe that any further evidence was necessary) it may be found in the appellant's own words when questioned by Mr McGuinness. The relevant exchange is set out in the judgment of Beazley JA. That account includes the evidence of Mr McGuinness that he asked the appellant "why he had done such a cowardly thing" to which the appellant, according to Mr McGuiness, replied "I just wanted to" . Mr McGuiness adhered to his evidence in that respect in cross-examination. As Beazley JA has noted, it was open to the jury to accept his evidence and if they did so it was additional evidence which supported the verdict. I respectfully agree.

[21]

(9) Was there a viable alternative offence under the amended s.35? 174As earlier indicated, the determination that a miscarriage of justice has occurred in a particular case through the failure of a trial judge to provide a jury with the opportunity to return a lesser verdict, even though the lesser offence is not charged, may be made where such lesser offence was a viable outcome on the evidence. As Smart AJ in King (supra) at observed 535:- "In deciding whether to leave the lesser offence the state of the evidence is critical as Gillard emphasises. The lesser offence is not left to the jury if the evidence in support of it is flimsy or the prospect of a conviction on the lesser offence rather than the major offence is fanciful." 175With this principle in mind, it is necessary, in relation to Ground 1(a), to consider the further question as to whether or not the state of the evidence was such that there was a viable alternative on the evidence, namely, a verdict in terms of an offence under s.35 ( "A person who recklessly causes grievous bodily harm to any person is guilty of an offence" ). For reasons detailed below, I am of the opinion that, on the evidence at trial, such an offence was not available as an alternative to the primary count. 176Beazley JA has observed at [82]:- "... there is a difference of substance between an intention to inflict some physical harm (the former s.35) and recklessness as to whether grievous bodily harm would be inflicted (s.35(2) as amended) as I have explained." 177The substantive difference between the two offences and the question as to whether there was evidence capable of supporting the second of those two offences is examined below. Before doing so, however, it is necessary at this point to refer to the accepted principles that apply in determining the concept of recklessness in relation to statutory offences. 178In Coleman (supra), Hunt J stated that in statutory offences other than murder, the degree of recklessness required in order to establish that an act was done maliciously was a realisation on the part of the accused that the particular kind of harm in fact done (that is, some physical harm - not necessarily the degree of harm in fact so done) might be inflicted (that is, may possibly be inflicted) yet he went ahead and acted (at 475). His Honour referred to the general acceptance of that test as flowing from the decision of the English Court of Criminal Appeal in Regina v Cunningham [1957] 2 QB 396 as explained in Mowatt (supra) at 426. I will refer again, for related purposes, to the decisions in these two cases below. 179As Hunt J observed, recklessness involves a realisation in an accused of the possibility of physical harm arising from a particular act yet the person inflicting the harm went ahead and acted. However, as the principles earlier discussed indicate, in deciding whether recklessness was a possible basis of criminal liability (and thus a viable outcome) it is the state of the evidence at trial which is critical. 180It is instructive to examine the two very different factual circumstances that occurred in Cunningham (supra) (a case involving recklessness) and Mowatt (supra) (a case involving a charge of wounding with intent to do grievous bodily harm). I refer here to those two cases as merely factual examples or illustrations as to the difference in criminal liability between the two types of cases. 181In Cunningham (supra), the facts, as noted by Diplock LJ in Mowatt (supra) at 425 were "very special". The appellant went to the cellar of a house and wrenched the gas meter from a gas pipe and stole it together with its contents resulting in gas seeping through the wall. The cellar was under a divided house, one part of which an elderly couple occupied and one of them inhaled some gas and her life was endangered. 182It was held that the offence in question postulated foresight of consequence and for the offence to be established it was necessary either that the accused person intended to do the particular type of harm in fact done or foreseeing that such harm might be done, he nevertheless recklessly took the risk. 183In Mowatt (supra), the defendant was charged with wounding with intent to do grievous bodily harm contrary to s.18 of the Offences Against the Persons Act 1861. The defendant's companion snatched money from the victim who, in a confrontation, grabbed hold of the defendant. The defendant knocked him down - a case of a direct assault. 184The facts in Mowatt (supra) would not, in my opinion, on any interpretation, have constituted a basis for a finding of recklessness. Similarly, the evidence in the present case, in my opinion, does not admit of the possibility of recklessness having regard to the legal principles that determine the nature of the criminal liability inherent in offences of recklessness. 185Cunningham (supra) exemplifies the concept of recklessness in the sense that the facts revealed a realisation in the offender of a risk that might arise from taking the action he did and his decision, nonetheless, to go ahead with his act. However, as Diplock LJ observed the facts in in Mowatt (supra) involved "a direct assault" (p.426) and that "... any ordinary person would be bound to realise was likely to cause some physical harm to the other person ..." (emphasis added). In other words, the facts in Mowatt (supra) unlike those in Cunningham (supra) did not involve a situation of the appellant realising the possibility of a risk and then notwithstanding a decision by him to take a risk and proceed with the act. 186In seeking to apply the principles by which the mental element in the concept of recklessness is to be determined to the objective facts established in evidence, I do not consider that there was a basis for a viable alternative offence based on the concept of recklessness under s.35. The trial judge accurately conveyed in her summing up to the jury the nature of the accused's action (at pp.27 to 28):- "... the accused punched Mr Ward in the face with a glass, as described by Ms Brooks, with such force that the glass shattered on impact with the face of Mr Ward and made the sound that two witnesses described as a crunching or a popping sound. The Crown Prosecutor suggested that can only be done with the intention of causing really serious bodily injury to Mr Ward ..."

[22]

(10) The alternative count left to the jury 187The alternative count that was, in fact, left to the jury, firstly, was a lesser offence than that under s.33 and, secondly, it required proof of only two elements, namely, that the accused in fact inflicted grievous bodily harm on Mr Ward and that he intended to cause some physical injury. 188The circumstances of the present case do not, in my opinion, attract the reasoning in Gilbert (supra) and Gillard (supra), both of those cases involving charges of murder. It is unnecessary to record the factual circumstances in each of those cases in detail other than to state the following by way of summary. 189In each case, the Court was concerned with the issue of knowledge of the appellants who assisted the primary offender who killed the victims in each case. The primary offender in Gilbert (supra) having inflicted injuries from which the victim died, the important factual issue of relevance in the appellant's case to a verdict of manslaughter as against murder was his state of knowledge as to what the primary offender (his brother) had intended to do to the victim when they arrived at their destination. The defence was that all that the appellant knew was that the brother intended to assault the victim. 190In Gillard (supra), the level of the appellant's culpability depended upon whether he foresaw that the primary offender (P) might act to kill or cause grievous bodily harm. The defence for the appellant was that he did not know of P's intention to kill the victim and he thought that what was involved was a robbery ( "the robbery hypothesis" ). 191In the present case, the issue of intent did not, of course, involve any question as to the extent of the appellant's knowledge as to an intended enterprise or of the existence of a factual matter that influenced the level of his knowledge about the type of action another person intended to undertake. The evidence having established that the appellant deliberately assaulted the victim, the issue that has been raised in this appeal is whether his intoxicated condition was such as to have impaired his capacity to form the specific intent (an intent to inflict grievous bodily harm). In other words, the question in the present case was not extent of knowledge of facts about the existence of a particular set of facts as was the case in Gilbert (supra) and Gillard (supra) but whether intoxication prevented him from foreseeing the probable consequences of his act in relation to the offence charged under s.33. 192Additionally, both Gilbert (supra) and Gillard (supra) differed from the present case in that error was established in each in that no available alternative offence (namely, manslaughter) was put before the jury in either case. In the result, the jury were required to determine the proceedings on a murder or nothing basis. 193As has been discussed, the jury in the present case had available the alternative offence as formulated in the terms set out in MFI 27. On that basis, they had a choice in the event that reasonable doubt arose on the issue of specific intent having regard to the issue of intoxication. The alternative count left to the jury could not be said to have involved a trivial offence. It involved serious criminal conduct punishable, not by a monetary or other non-custodial penalty, but in accordance with the provisions of former s.35, it was punishable by a maximum term of imprisonment of 7 years. The maximum sentence of 7 years was 2 years less than the total sentence actually imposed by the trial judge. The objective seriousness of the offence under s.35 as put to the jury, if available and proved, would quite possibly have attracted a sentence at least close to the maximum penalty. 194I should deal separately with a further matter concerning the question raised by the jury. At transcript, 17 December 2008, p.45 (of the summing up transcript) the jury asked: "What are the consequences of the jury not being unanimous on the third element, ie, intent?" . That question was not of the same character as the specific jury question about the availability of a verdict of manslaughter in Gilbert (supra) at 420. 195Further, unlike Gilbert (supra), the question raised by the jury in this case was not answered. In Gilbert (supra), an incorrect answer was provided to the jury. In these proceedings, her Honour discussed with counsel whether or not the jury's question should be answered at that early stage and, after the discussion, the jury were told:- "I am not able to answer the question at this stage. It is early in your deliberations, as you know, and at this stage I am just simply going to ask you to continue with your deliberations." (transcript, p.46) 196Accordingly, in contrast to Gilbert (supra), this was not a situation of a question and erroneous answer as to an ultimate question concerning the availability of an alternative offence, in that case, the offence of manslaughter. The question was raised at an early stage and is consistent with the position of the jury perceiving and identifying the third element as the real issue in the case and displaying a degree of conscience by the jury on that important matter. I do not consider that the question itself carries any significance in the determination of the issues in this appeal.

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(11) Application of the proviso to s.6(1), Criminal Appeal Act 1912 197The trial judge's directions in relation to the alternative counts were incorrect in that the directions were framed in terms of s.35 as enacted by the Crimes Amendment Act 2007. In circumstances earlier discussed, the directions should have been framed by reference to s.35 operative at the material time ( recklessly causing grievous bodily harm ). 198In those circumstances, the decision of the trial judge to provide directions in relation to the alternative offence can be said to have involved a "wrong decision" on any question of law within s.6(1) of the Criminal Appeal Act 1912. 199Alternatively the incorrect directions in respect of the second charge can, in my opinion, be characterised as a "miscarriage of justice" within the meaning of s.6(1) of that Act. 200The Court in those circumstances must allow the appeal against conviction unless, within the proviso to s.6(1), it concludes that no substantial miscarriage of justice has actually occurred in which case the Court may dismiss the appeal. 201The High Court in Weiss v The Queen (2005) 224 CLR 300 (Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ) made a number of observations on the statutory task arising in the application of the proviso to s.6(1) Criminal Appeal Act . In particular the following propositions were enunciated by the Court:- (1) The statutory task to be undertaken in respect of the proviso is to be undertaken in the same way an appellate court decides whether the verdict of the jury should be set aside on the grounds that it is unreasonable, or cannot be supported having regard to the evidence. (2) An appellate court must make its own independent assessment of the evidence and determine whether, making due allowance for the "natural limitations" that exist in the case of an appellate court proceeding wholly or substantially on the record, the accused was proved beyond reasonable doubt to be guilty of the offence on which the jury has returned its verdict of guilty. (3) Accordingly, in examining the record of proceedings at trial, there are three fundamentals, namely:- (a) the appellate court must itself decide whether a substantial miscarriage of justice has actually occurred; (b) the statutory task under s.6(1) of the Criminal Appeal Act is an objective task not materially different from other appellate tasks; and (c) the standard of proof is the criminal standard. (4) The following matters are also to be taken into account:- (a) The appellate's task must be undertaken on the whole of the record of the trial including the fact that the jury returned a guilty verdict. The court is not "to speculate upon probable reconviction and decide according to how the speculation comes out" : Kotteakas v United States (1946) 328 US 750 at 763 (cited in Weiss (supra) at 317). (b) There are cases, however, in which it would be possible to conclude that the error made at trial would, or at least should, have had no significance in determining the verdict that was returned by the trial jury. The fact that the jury did return a guilty verdict "cannot be discarded from the court's assessment of the whole record of trial..." (at 317). (c) It is always necessary to keep two matters at the forefront of consideration: the accusatorial character of criminal trials and that the standard of proof is beyond reasonable doubt (at 317). (d) There may be cases where it would be proper to allow the appeal and order a new trial, even though the appellate court was persuaded to the requisite degree of the appellant's guilt. Cases where there has been a significant denial of procedural fairness at trial may provide examples of cases of that kind (at 317). 202I have referred to the evidence of various witnesses called in the Crown case that established the relevant circumstances surrounding and concerning the attack by the appellant upon the victim. 203The jury, on that evidence, were required to determine the appellant's state of mind (his intention) on the basis of the objective circumstances established by their evidence together with the CCTV film. The appellant's evidence was (and presumably would still be in the event of any re-trial being ordered) that he had no memory at all of any relevant events including the assault itself (his case, notwithstanding, was, of course, that he was not the assailant). 204The appellant said in evidence that he had no memory as to a number of matters before arriving at those premises and he said: "... I sort of have a memory of being like in Scruffy Murphy's" (AB 543 lines 30 to 35). His evidence was that he had no recollection of anything specific at all about the dance floor, no recollection of meeting or speaking to anyone inside the hotel, no recollection of any incidents involving Mr Wood, Ms Masters or Ms Brooks and no recollection of any of them speaking to him in the hotel. He said he did not have any recollection of speaking to a barman or a barmaid. He could not recall being dragged to the floor by anyone or being taken from the hotel. He did recall speaking to bouncers at the hotel or to Mr McGuinness and did not recall police being at the hotel or speaking to police. 205The appellant was asked in chief whether, over the previous year, he had made any attempt to try and remember what had occurred on the night of the incident. He replied that he had "A lot ...." . 206At the end of his examination in chief the following question and answer are recorded (at AB 547 lines 12-13):- "Q. Have you been able to resurrect any memory at all? A. No, I haven't. Q. Finally did you strike the man Daniel Ward with a glass to the face? A. No I didn't." 207In cross-examination, the appellant maintained that he had no recollection at all of any events at the Scruffy Murphy's Hotel (AB 547-560). 208The evidence on the critical issue of the appellant's state of mind (his intention to commit the act and his intention to inflict harm) accordingly remained one for the jury to determine, in the main, on the basis of the evidence called in the Crown case. 209The evidence given by the witnesses called in the Crown case, including the victim, provided a consistent account of events. Had this been a case where the appellant gave evidence that, for example, he only intended to strike out at the victim but had no intention of hitting him with the glass or that he only intended to assault him to a limited degree or that he intended an assault of the victim which would only cause harm of a low order then a failure by the trial judge in those circumstances to direct the jury on recklessness would carry significance in terms of there being, on the evidence, a viable alternative count. In such circumstances, there could then be said to have been a loss of an opportunity for the jury to consider the same. 210In the present case, where the appellant said he had no memory at all of the events, the jury were left to determine his intention based on the only available evidence, most of which constituted the Crown case. 211It has been accepted that sometimes it is possible for an appellate court to be satisfied that it can apply the proviso even though it has not seen or heard the witness: Weiss (supra) at 316, [41]; Regina v Rudd (2009) 23 VR 444, 462 per Redlich JA. In the latter case, the observation was made that the nature of the case made against an appellant may be such that the appellate court will be well placed to make its own evaluation of the evidence and a determination as to the guilt of the appellant (Redlich JA at [79]). 212In my opinion the latter observation appropriately applies to the present case being one concerning a discrete physical event about which there was direct eye-witness evidence with the appellant's position at trial being that he had no relevant memory and therefore gave no evidence as to his state of mind. The cogency of the evidence in the Crown case in those circumstances remained unaltered by evidence given by and for the appellant. 213The error relied upon in relation to the trial directions on the alternative offence is, accordingly, not the type of error that deprives this Court of the capacity to assess the strength of the case against the accused and conclude that there has been no substantial miscarriage. In other words the accuracy, the reliability and the cogency of the evidence led in the case against the appellant was unaffected by any error at trial. That evidence, accordingly, permits this Court to assess whether an alternative count under s.33 was a viable outcome. In my opinion, the failure by the trial judge to direct the jury in relation to the alternative count did not give rise to significant procedural fairness

Blackwell v Regina

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Cases Cited (38)