Byrne v R [2014] ACTCA 31

Court of Appeal (ACT)|2014-08-15|Before: Penfold and Gilmour JJ, Walmsley AJ

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

CRIMINAL LAW - appeal and new trial - miscarriage of justice -conviction in judge-alone trial in which trial judge misunderstood some facts - whether misunderstanding was fundamental.

AK v Western Australia [2008] HCA 8; (2008) 232 CLR 438

R v ADW (2002) SASR 178

Spies v The Queen [2000] HCA 43; (2000) 201 CLR 603

ACTCA 84 of 2013; SCC 345 of 2011

1. On 27 November 2013 the appellant, Mr Byrne, was found guilty of the offence of recklessly inflicting grievous bodily harm on Timothy Gerald McCarthy. His trial was by judge alone.

2. This is an appeal by Mr Byrne against his conviction. If he is successful, he asks that the verdict be set aside and a verdict of acquittal substituted, alternatively that he be granted a new trial.

3. On 23 July 2011 the complainant, Mr Timothy McCarthy, who was then aged 40, went out with a flat mate for a night of socializing. They went to the Civic area of Canberra, where they visited several Irish pubs, drinking at each of them. They parted company at about 11.30 pm. At that time Mr McCarthy seemed to Mr O'Sullivan to be in good spirits, but not unduly intoxicated. The evidence does not disclose where Mr McCarthy was or what he did between 11.30 pm and 5 am.

4. Near the corner of London Circuit and Northbourne Avenue in Civic there was a convenience store called "Quick and Go". Just after 5 am on 24 July Mr Byrne, then aged 18, was, with some others, standing outside that store when the group was approached by Mr McCarthy. A short time later Mr Byrne punched Mr McCarthy in the head, causing him to fall. Either the punch or the fall, or both, caused very serious head injuries. It was that punch which led to the charge on which Mr Byrne was ultimately convicted.

5. By the time of the trial Mr McCarthy had returned to live in his home country, The Irish Republic. Although it is not clear from the evidence, it seems to have been assumed Mr McCarthy would not have been able to give any relevant evidence because of cognitive defects. The bulk of the evidence was made up of testimony from other people who were present, as well as some surveillance film.

6. Within the "Quick and Go" there was a closed circuit television camera which recorded some relevant events. It is undisputed that the appellant and the complainant are easy to discern in the CCTV footage. Mr Byrne may be seen wearing a white coloured top. Mr McCarthy may be seen wearing a white coloured top with a horizontal stripe across its back. The CCTV footage shows that shortly before he was punched, the complainant went up to one of the group and gave him a hug; then he is shown giving someone (either the same person or some other person) another hug.

7. The trial judge found that the CCTV footage showed the appellant twice reaching out and touching the complainant on the shoulder, followed by the complainant's turning towards him and taking two steps towards him, stopping about half a metre away; he was then seen, she found, to put his left arm around the appellant's shoulder and give him a brief hug. Her Honour found there was then a verbal exchange between the complainant and the appellant lasting 15 to 20 seconds, the appellant finally stepping backwards in a decisive manner, raising his right arm, and punching the complainant once in the area of his right eye, causing him to fall backwards, striking his head on concrete paving.

8. Several security guards were nearby, having just left an adjacent nightclub. One, Mr Vakiasolo, told the trial judge he had heard a "thump" and had then seen the appellant standing about a metre from the complainant, who was lying on the ground, apparently unconscious. Initially the appellant just stood there. But. then he ran across to the middle of Northbourne Avenue, calling out, apparently to those he had been with, "Come on, just leave him. The cops are going to come". He and the others, numbering five or six, then ran off down Alinga Street.

9. When, as he put it, the appellant had "shot off", Mr Vakiasolo heard Mr Byrne say "It was his fault. It was his fault".

10. Another security guard, Mr Ahkey, said he had become aware a man had been injured. He saw the appellant at the scene. He recalled that the appellant at one stage began walking backwards, away from them, at the same time pointing to the complainant and saying: "It was his fault". He also recalled a friend of the appellant's pointing to the complainant and saying: "It was his fault".

11. Detective Senior Constable Adams gave evidence of the arrest. He said he had gone to the appellant's home where the appellant had hidden in the garage before being arrested. The appellant's apparent attempt to avoid arrest was ultimately relied on by the Crown as flight evidence amounting to a consciousness of guilt.

12. A transcript of an intercepted telephone conversation between the appellant and his brother just before the arrest was tendered. It also gave support to the Crown's flight submission.

13. Dr David McDowell, a neurosurgeon, gave evidence of the complainant's significant brain injury. He said the blow delivered by Mr Byrne would have been of significant force.

14. The appellant gave evidence. It is to be recalled that his case at trial was that he had administered the blow in self defence. So for him to be found guilty of the offence on the indictment, it was necessary for the Crown to exclude beyond reasonable doubt that he had acted in self defence.

15. The appellant told the trial judge he had hit the complainant because he had felt threatened by him. He said he had some difficulty recalling events from that night. He had been drinking, and was intoxicated, although he could not say to what extent. He recalled the complainant hugging one of his friends, Mr Costa, in a manner which was not friendly. He had then tapped him and told him to take it easy. He could see Mr McCarthy was drunk. His found his body language threatening. He tapped him again. Mr McCarthy then walked towards him, making him feel threatened. Then Mr McCarthy said he was Irish and was better than the appellant. The appellant ignored that. But then Mr McCarthy asked him to fight, saying "Come into the fucking alley way because I want to fucking fight. I want to fight you cunt". At that point he thought Mr McCarthy was going to hit him. So he stepped away from him. But Mr McCarthy again asked him into the alley way for a fight. He then hit him, instinctively.

16. Mr Byrne was challenged on a number of significant aspects of his evidence. For example it was put to him that it was odd he could have such a good recall of the events just before the punch whereas other events that morning were hazy in his memory.

17. He said he had run from the scene of the punch as he had panicked.

18. He conceded he had known when police came to his home that they were there to arrest him.

19. The appellant's friend, Mr Gibbs-Manuata, told the court he had been out with the appellant that night. He had seen the complainant come up to Mr Costa and hug him. Then the appellant "tapped the guy and was, like, 'hey'".[1] Mr Costa pushed him off and the complainant looked angry, started looking at the appellant and came towards him. He heard him say to the appellant "like, he would fight Daniel and that he would kill Daniel, because he was Irish". These words were spoken aggressively.[2] Then he spoke more loudly, forcefully and aggressively to the appellant, who hit him, causing him to fall to the ground. Then he and the appellant were chased by men they later learned were bouncers. He recalled yelling to them:"It's his fault. He threatened him. It was self-defence." Then he and the appellant had run off.

20. Mr Gibbs-Manuata had only been asked to give evidence two weeks before the trial. He had discussed the facts with the appellant a long time before the trial. He had seen the CCTV footage about two weeks before the trial. That had triggered memories of what had occurred. He denied he had merely come to court to help out his friend.

21. When addressing, the Crown referred to the CCTV footage as to the interchange between the appellant and the complainant, and submitted that the footage contradicted the appellant's evidence as to his state of mind; that far from showing an aggressive man, the footage showed Mr McCarthy to engage in friendly bear hugs which were reciprocated by their receivers. He submitted it was significant that the appellant and his friend seemed to have good recall for the events immediately leading up to the punch, but not for other aspects of that morning. He submitted they had tailored their evidence to fit the CCTV footage.

22. Counsel for the appellant conceded to her Honour that his client had punched the complainant with a closed fist. He submitted the recklessness issue required the court to focus on the appellant's mental state at the time of the punch. Addressing self defence, he referred to the fact that the complainant had been unknown to his client or his client's group, he had engaged in the bear hugs, and his words had been hostile and threatening. His client had feared he would be hit, and had responded after the second threat in order to protect himself. That had been a proportionate response, he argued. He submitted that if the court found he had been intoxicated, the offence alleged was not one of basic intent, and his intoxication could be taken into account, though self administered. He submitted his post incident actions, such as flight, and hiding from the police, had been due to factors such as panic, and were not necessarily suggestive of a consciousness of guilt.

23. Her Honour found the appellant guilty of recklessly inflicting grievous bodily harm on Mr McCarthy. She expressly did not take into account post offence conduct as consciousness of guilt. However her Honour found the appellant a "completely unreliable witness".[3] In particular she found it remarkable that he appeared to have a good memory for exculpatory matters, but a blurry memory for other events. She took into account what she saw as his defensiveness and appearance of prevarication when giving evidence. She found that he had either lied about the events immediately preceding the incident, or about having a good recollection of critical events, and she placed no weight on his evidence. She found too that although he had been somewhat intoxicated by 5.30 am on 24 July, he must have been generally in control of his mental faculties as he had been able to exercise good physical control.

24. Her Honour found Mr Gibbs-Manuata had made a reasonable effort to tell the truth, but that his evidence concerning critical events was not reliable, among several reasons being that he had discussed the incident with the appellant after the event and there was a real risk his recollection had been contaminated by the appellant's assertions; since he had been shown the CCTV footage two weeks before the trial, that would probably have guided his recollection of events, so what he said was his recollection was not truly independent. Thus she placed no weight on his evidence either. Her Honour observed that when determining whether the prosecution had proved its case beyond reasonable doubt, she had disregarded the evidence called in the defence case.

25. Before she made her credit findings about the appellant and Mr Gibbs-Manuata, her Honour set out a summary of the facts she found to have been uncontentious. Among those facts, and dealing with the immediate aftermath of the incident, her Honour said: "The accused was walking backwards, saying 'It's my fault, it's my fault'". It is to be recalled however that that was not what the appellant had said. Rather he had said, referring to the complainant, "It's his fault".

26. Her Honour identified the elements to be proved beyond reasonable doubt, namely:

(a) The complainant had suffered grievous bodily harm.

(b) The appellant had inflicted that harm.

(c) The appellant had realized the possibility that his act of punching the complainant may cause the complainant to suffer grievous bodily harm in the sense of really serious bodily injury, but went ahead anyway.

27. Her Honour referred to the absence of direct evidence of the accused's state of mind "upon which some weight can be placed",[4] and found all three elements proved beyond reasonable doubt.

28. Her Honour then directed herself as to the elements of self defence, noting the Crown carried the onus of proving the accused did not at the relevant time believe on reasonable grounds the punch had been necessary for his self defence. Her Honour then referred to the significance of intoxication for the actual belief aspect.

29. Section 33 of the Criminal Code 2002 (ACT) provides:

(1) If any part of a defence is based on actual knowledge or belief, evidence of intoxication may be considered in deciding whether the knowledge or belief exists.

(a) each physical element of an offence has a fault element of basic intent; and

(b) any part of a defence is based on actual knowledge or belief;

evidence of self-induced intoxication cannot be considered in deciding whether the knowledge or belief exists.

(3) If any part of a defence is based on reasonable belief, in deciding whether the reasonable belief exists, regard must be had to the standard of a reasonable person who is not intoxicated.

(4) If a person's intoxication is not self-induced, in deciding whether any part of a defence based on reasonable belief exists, regard must be had to the standard of a reasonable person intoxicated to the same extent as the person concerned.

30. Her Honour found s 33(1) operated to make intoxication relevant. However, taking intoxication into account, she found the appellant had not actually believed it had been necessary to administer the blow in his self defence. Her Honour found there was then no need to consider whether any belief of the appellant had been "reasonable".

31. After her Honour had made her orders and given her reasons, the Crown informed her Honour that she had incorrectly recalled the words used by the appellant. There was then a discussion about its effect on her reasons and judgment. But there was no application by either party to reopen, and no suggestion by her Honour that she was attempting to reopen the matter. The transcript of that exchange was annexed to the corrected version of the judgment and appeared in the Appeal Book as Annexure A to the judgment.[5]

32. Initially the only ground relied on was the unsafe and unsatisfactory ground. At the hearing of the appeal the appellant was given leave to amend his notice of appeal. The Crown, having anticipated leave would be given, addressed the then proposed amended grounds. The grounds of appeal ultimately relied on were:

(a) The learned trial judge erred in failing to have proper regard to the evidence that the appellant, very shortly after striking the complainant said, in reference to the complainant, "It was his fault".

(b) The learned trial judge erred in determining that she would place no weight on the evidence of the appellant.

(c) The learned trial judge erred in determining that she would place no weight on the evidence of Mr Gibbs-Manuata.

(d) The verdict is unsafe and unsatisfactory having regard to all of the evidence.

33. The appellant conceded there was no issue that he had struck the complainant, and submitted that the only issue had been self defence. The appeal proceeded on the assumption that her Honour had misunderstood what the appellant had said after the incident.

34. The appellant submitted her Honour's finding that the appellant had said: "it's my fault" had been a finding of fact on which she had relied for the purpose of s 68C(2) of the Supreme Court Act 1933 (ACT). What was an exculpatory assertion had been treated as an admission. This amounted to a failure to take account of exculpatory evidence and an improper use of evidence to support the Crown case; reference by her Honour in her reasons to the absence of direct evidence as to the appellant's state of mind had overlooked that evidence. Although not every slip or misstatement of fact by a judge in factual findings will be a failure to comply, the slip or misstatement in this case did constitute a breach of s 68C(2) and there had been an error of law. The finding was also one for which there was no evidence, so it was in breach of the court's obligations under s 68C(1). The appellant referred the Court, for the principles binding a judge conducting a judge-alone trial, to Fleming v The Queen (1998) 197 CLR 250 at [24]-[33] and AK v Western Australia [2008] HCA 8; (2008) 232 CLR 438.

35. Insofar as the transcript in Annexure A to the Notice of Appeal may be seen to amount to reasons, it was argued they are irrelevant to the determination of the appeal. In any event the Crown conceded it did not make up part of her Honour's reasons.

36. It was argued her Honour had failed to have regard to a prior consistent statement made contemporaneously with or close to the time of the assault. It had been consistent with a belief that the appellant had had to act for his self defence, even if, as the Crown submitted, the content of the assertion had been invented at the time.

37. The appellant argued her Honour had erred in the way she had disposed of the appellant's credit by criticising him for recalling critical events well but other events not so well.

38. The appellant's evidence correctly interpreted ought to have been assessed in the light of all of the evidence and the question to have been considered was whether the Crown had excluded beyond reasonable doubt that he had honestly believed it had been necessary to act as he did.

39. It was submitted her Honour had been incorrect in her reasons for rejecting the evidence of Mr Gibbs-Manuata. In particular it had been impossible to assess his evidence without having regard to his contemporaneous evidence that the incident had been the complainant's fault.

40. Finally, it was argued that the verdict of guilty was unreasonable and could not be supported having regard to all the evidence: SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 at [11].

41. The appellant submitted that if any of grounds 1, 2 and 3 was made out, the verdict should be quashed and there should be a new trial, and that if ground 4 is made out there should be an acquittal.

42. The Crown sought to uphold the guilty finding.

(a) Nothing in the CCTV footage indicated that the complainant had made any physical gestures indicating he was going to assault the appellant, whereas the footage shows the appellant walking away without hesitation, after striking Mr McCarthy, then running off, with two others. This, she submitted, was "telling".

(b) There were aspects of the appellant's evidence which were unsatisfactory, as there were with that of Mr Gibbs-Manuata.

(c) The error was not one of law but of fact. Although the error was more than minor, this was not such a misdirection as should lead to this Court's intervening. Reliance was placed on R v ADW (2002) SASR 178, concerning a judge-alone trial where the judge had misstated a fact. There, Doyle CJ said at [43]:

I do not accept that every misdirection on the facts in a trial by judge alone, or even any misdirection that might possibly have affected the ultimate finding of guilt, would necessarily provide a basis for this Court to interfere.

(d) Neither the Crown nor the appellant's counsel referred to the appellant's statement in their addresses. So it does not follow that the incorrectly recorded evidence played any part in her Honour's ultimate conclusion.

(e) Her Honour did not refer to the evidence of what the appellant said after the incident in such a way as to show it affected her finding on the appellant's credibility.

(f) What the appellant said did not of itself show what was in the appellant's mind at the time he hit Mr McCarthy.

(g) It was open to her Honour to make the credit findings she did, and her Honour correctly articulated the reasons for rejecting the evidence of the appellant and Mr Gibbs-Manuata, and although her reasons can be questioned, they were, when properly scrutinised, not in breach of her Honour's obligations under s 68C(2) of the Supreme Court Act.

44. When there is an appeal from a single judge this court's powers are found in ss 37O(2) and (3) of the Supreme Court Act as follows:

(2) The Court of Appeal on an appeal against conviction must -

(i) 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; or

(ii) the judgment of the court before which the appellant was convicted should be set aside on the ground of a wrong decision of any question of law; or

(iii) on any other ground there was a miscarriage of justice; or

(3) However, the Court of Appeal may also dismiss an appeal against conviction if it considers that -

(a) the point raised by the appeal might be decided in favour of the appellant; but

(b) no substantial miscarriage of justice has actually occurred.

45. Section 68C of the Supreme Court Act provides:

68C Verdict of judge in criminal proceedings

(1) A judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury as to the guilt of the accused person and any such finding has, for all purposes, the same effect as a verdict of a jury.

(2) The judgment in criminal proceedings tried by a judge alone must include the principles of law applied by the judge and the findings of fact on which the judge relied.

(3) In criminal proceedings tried by a judge alone, if a territory law requires a warning or direction to be given, or a comment to be made, to a jury in the proceedings, the judge must take the warning, direction or comment into account in considering his or her verdict.

46. In AK v Western Australia [2008] HCA 8; (2008) 232 CLR 438 the High Court considered the principles on appeal from a judge-alone trial. The provision there being considered, s 120 of the Criminal Procedure Act 2004 (WA), provides:

(a) the judge may make any findings and give any verdict that a jury could have made or given if the trial had been before a jury; and

(b) any finding or verdict of the judge has, for all purposes, the same effect as a finding or verdict of a jury.

(2) The judgment of the judge in a trial by a judge alone must include the principles of law that he or she has applied and the findings of fact on which he or she has relied.

(3) The validity of a trial judge's judgment is not affected by a failure to comply with subsection (2).

47. As is apparent, that provision is substantially similar to s 68C of the Supreme Court Act.

48. In AK v Western Australia at [104]-[105], Heydon J said:

[104] The criminal burden of proof and the criminal standard of proof survive abolition of jury trial. The need for jury unanimity or near unanimity does not. The discipline that need generates cannot be compensated for directly. But by an indirect route the duty to give reasons can operate to safeguard the interests of the accused and the public interest generally. That is because a move to trial by judge alone causes appeals to operate in a radically different way. It is much easier for an appellate court to detect appellable error where reasons for the verdict at trial must be provided than it is when the appellate court is limited only to the record of the proceedings before a jury. When a trial judge directs the jury on the law, it will be clear what was said. If nothing is said, or something erroneous is said, about decisive questions of law, an appeal will lie. Those possibilities are complete checks against judicial error in propounding the law. The substitution of judge for jury as trier of fact would leave open the risk of judicial errors as to the law unless there were a requirement that the judge state the principles of law being applied, and s 120(2) creates this requirement. Just as a jury trial without a judicial summing up would not really be a trial, a trial by judge alone without a s 120(2) statement of the applicable legal principles would not really be a trial. In this respect s 120(2) preserves an aspect of jury trial; it does not reject it.

[105] But s 120(2) goes beyond requiring a statement of legal principle; it requires that the findings of fact relied on be stated. That requirement has two consequences. It permits close appellate supervision of the trial judge's factual reasoning. And it creates the need for the trial judge to submit to a demanding discipline.

49. Thus where there is a trial by judge alone, there can be scrutiny of the fact finding process, a factor absent on an appeal from a jury verdict.

50. It is undisputed that her Honour proceeded on a misunderstanding of the facts. The issue is what effect that had on the findings on which she based her finding of guilty.

51. In R v ADW (2002) SASR 178 when a judge proceeded on a misunderstanding of a fact, it was held to have been a misdirection the effect of which was that the judge had not dealt with the accused's case, so that there had been a miscarriage of justice.

52. In our view her Honour's error was fundamental to her findings, and the appellant was thereby deprived of a trial based on the case put by the Crown and defended on his behalf. It follows that the trial miscarried. It was, we consider, an error of law such that the relevant findings were arrived at in breach of s 68C(1).

53. Fundamental to the Crown case against the appellant was the requirement that it disprove beyond reasonable doubt either that he believed that his conduct in striking the complainant was necessary for his self defence, or that there were reasonable grounds for any such belief. When the appellant, as he undoubtedly did, said immediately after striking the complainant that it had been Mr McCarthy's fault, he was making a contemporaneous statement of an exculpatory kind. When Mr Gibbs-Manuatu said the incident had been the complainant's fault, that was evidence going to the facts to be considered overall by the trial judge when considering whether the Crown had discharged its onus of proof.

54. Although neither the Crown nor the appellant's counsel referred to the exculpatory statement in their addresses, the way counsel for the appellant conducted the trial shows he regarded the statement as of significance. For example when the first security guard to give evidence, Mr Vakiasolo, was called, he did not give evidence in chief about the statement. The only statement he spoke of in chief was the appellant's saying : "Come on. Let's go. The cops are going to come."[6] But shortly afterwards[7] he agreed in cross examination the appellant had said as he was walking backwards away from the scene: "It was his fault. It was his fault".

55. With the other guard, Mr Ahkey, the evidence came out in chief, so it was unnecessary for the cross examiner to ask that question.[8] However he did cross examine to make it clear that as he uttered the words, the appellant had been pointing at the complainant.[9]

56. Further, the trial was short. So one would not necessarily expect counsel to remind a judge of all of the evidence when it had all been adduced on the day of the addresses and the previous day.

57. It is true that her Honour did not refer to the exculpatory statement as part of her reasoning process. But she did refer to it when finding the factual background. It is not possible to say whether she did rely on it or not. But on its face the statement cannot be excluded as having had a significant effect on her Honour's credit findings and ultimately her findings concerning self defence.

58. Although the Crown argued that the statement of itself does not throw light on the appellant's state of mind at the time he threw the punch and could be merely a self serving statement thought up at the time, the statement is not to be read or considered alone, but with all of the facts proved at the trial.

59. Although the Crown referred us to the exchange between her Honour and counsel after the misunderstanding had been drawn to her attention (at [31] and [35] above), we do not consider we should have regard to that. It was irrelevant to issues before us, and in the end we took the Crown to accept that.

60. Although the Crown argued it was open to her Honour to find the appellant had lied either about not being able to recall events preceding the incident or when he said he had a good recall of critical events, that does not answer the argument that she may not have reached that view had she not proceeded on a misunderstanding. The same may be said as to the Crown's argument that it was open to her Honour to make the credit finding she did relating to Mr Gibbs-Manuata.

61. Although her Honour did not refer to the statements of the appellant as part of her reasoning process, it is impossible to rule out that her conclusions, and especially her credibility assessment of the appellant, were significantly affected:

(a) by her mistaken understanding that on the night of the incident the appellant had admitted responsibility for the assault; and

(b) by her knowledge that by the time of the trial he was effectively denying that responsibility.

62. The question then arises as to whether the proviso in s 37O(3) of the Supreme Court Act should apply. In our view it should not. The misunderstanding was a fundamental one and had the effect that the appellant did not have a proper trial, such that there was a substantial miscarriage of justice: AK v Western Australia [2008] HCA 8; (2008) 232 CLR 438 at [87] per Heydon J.

63. At the conclusion of the hearing of the appeal the court allowed the appeal, set aside the verdict and conviction, granted the appellant bail, and adjourned the hearing to 15 August at 2.15 pm for the delivery of reasons and the making of final orders.

64. The verdict was set aside because the Court was of the view there had been a substantial miscarriage of justice. Having considered the arguments as to whether there ought be a new trial or a verdict of acquittal we are of the view there ought to be a new trial. There was, in our view, ample evidence before the trial judge to support the charge: Spies v The Queen [2000] HCA 43; (2000) 201 CLR 603 at [104] per Gaudron, McHugh, Gummow and Hayne JJ.

I certify that the preceding sixty-four [64] numbered paragraphs are a true copy of the Reasons for Judgment of the Court.

21 May 2015 Replace "Mr Tony McCarthy" with "Mr Timothy McCarthy". Paragraph: [3]

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