Davies, Larry Glenn v R

The Crown case at the trial 7The principal Crown witnesses were the victims, Butler and Lee. Butler 8Butler's evidence-in-chief can be briefly summarised as follows. 9Butler gave evidence about the deterioration of the relationship between him and his wife Castle. In about February or March 2006 Castle removed many of her personal possessions from the house at 28 Glenmore Crescent and placed them in storage. Butler removed some of his belongings and left them at his parents' house. 10Butler's occupation was a leading hand or foreman on mining and road construction sites and he was frequently away from Macksville for a number of days at a time. On an occasion in mid May 2006 Butler returned to Macksville after being away while working. He found that the locks to the house at 28 Glenmore Crescent had been changed and that the house had been stripped of furniture and appliances. 11Butler again spent some time away from Macksville and arrived back in Macksville on 26 May 2006. He discovered that the locks to the house at 28 Glenmore Crescent had again been changed. The next day Butler had the locks changed back. Butler moved some of his personal belongings back into the house "so that I could make it liveable again". He was assisted by Lee's son Christopher. Butler then went with Christopher to a hotel, where they were joined by Lee. Subsequently all of Butler, Lee, Christopher and his girlfriend went to 28 Glenmore Crescent. At about 10 or 10.30 in the evening Christopher and Christopher's girlfriend left. Both Butler and Lee fell asleep. 12Butler was awoken by a loud bang outside the house. It sounded like someone kicking the front door of the house. Butler could hear Castle's voice saying "Get them out". 13The front door of the house was smashed open, breaking tiles on an interior wall of the house and driving the handle of the door through the wall. 14Butler saw Adams, who was holding a three-quarter sized baseball bat. Immediately behind Adams was the appellant, who was carrying a curtain rod about 40 millimetres in diameter and about 4 feet long. 15Castle was behind the two men in the driveway. "She was screaming", saying "Get out, Steve get him, fuck off, this is my house". Adams said that Butler was trespassing. "He told me I was going to get it". 16Parts of Butler's further evidence were as follows:- A. Both Steve and Larry grabbed me and forced me into the kitchen area where Jen was. They had hold of my jumper, trying to get me down, the jumper was ripped off my body, over my head and then I was forced into the corner of the kitchen. Q. When you say "they", who are you referring to? A. Steve Adams and Larry Davies. Q. What happened in the kitchen? A. That's where they started hitting me and punching me, trying to get me on the ground. Q. Whereabouts in the kitchen were you at that point? A. I was in the corner near the kitchen bench, near the sliding door. Q. Were both Adams and Davies with you at that point? A. Yes. Q. What were they doing? A. They were hitting me with the bat and punching me and they had me forced into the corner. Q. Well you've given evidence that there was one bat, a baseball bat, a smallish baseball bat, is that what you're referring to? A. It was a baseball bat and a lump of timber. Q. Where were you being hit with these implements? A. On the, the top of my back and the top of my head. Q. Were both of these people standing directly in front of you, were they to the side of you or the back of you or what was the situation? A. There was one either side of me, Steve was on my left side, Larry was on the right side and very close to me, had me shoved in the corner. Q. The blows that they were striking with the implements, can you tell us something about the force that was being used? A. It was definitely heavy but I think I was lucky because they were so close to me they couldn't swing them. .................. A. That's where they started hitting me and punching me, trying to get me on the ground. .................. A. They were hitting me with the bat and punching me and they had me forced into the corner. .................. Q. You say the implements were striking you around the head and the back were they? A. The back and the shoulders, because I was in a sort of crouched position because they were trying to push me into the floor. Q. Being more specific about the head, whereabouts to the head where you being struck? A. On top of the head and to the back of the head. 17Butler heard Castle making a telephone call and asserting, falsely, that she was then assaulted. 18Both the appellant and Adams were punching Butler. Lee tried to pull the appellant off Butler. Adams grabbed Lee by the hair, pulled her down and then punched her. Castle was telling Adams "to get the whore (referring to Lee)". 19While Adams was dealing with Lee the appellant was still assaulting Butler, landing punches on the side of his head and on his forehead and nose. 20Butler grabbed Adams by his private parts and Adams let Lee go. Adams then resumed hitting Butler, who was still in a crouched position, on the top of his head. 21The appellant dragged Lee into the kitchen of the house. Butler and Adams wrestled for control of the baseball bat. Butler's evidence continued:- A. I eventually got the bat from him. I didn't get a chance to use it and Larry hit me from the side, on the back of the legs. Butler fell to the floor, dropping the baseball bat. 22Adams told Butler, "to get out. I warned you you'd get it". Adams picked up the baseball bat and "they (Adams and the appellant) both came towards me and grabbed me". 23Butler picked up a Fijian war club "that we bought in Fiji at our wedding and used it to protect myself". The club had been hanging on a wall in the lounge room of the house. "I used it to block the blows from the baseball bat and the lump of timber" which were then being aimed at Butler. "Most of the blows........ were blocked by the war club but I was still getting hit". 24Butler was up against the wall and "they rammed my head into the wall a few times". "My middle right finger was smashed between the war club and one of the hits from either the baseball bat or the lump of timber". The Fijian war club itself was smashed in pieces. 25Butler heard Lee making what he thought was an emergency telephone call. 26At this stage the appellant "left the room and disappeared". Butler did not see the appellant again until later. 27Adams stopped trying to hit Butler with the baseball bat. Butler picked up his keys and wallet and started leaving the house. As Butler was leaving the house Adams struck Butler with the curtain rod fracturing a bone in Butler's left arm. As Butler left the house he was bleeding from his finger and from a wound to his head. 28Butler left the house and rejoined Lee and went to his vehicle. The window of the vehicle had been smashed, leaving broken glass on the ground. Adams grabbed Lee by the hair, pulled her to the ground and dragged her through the broken glass. This incident gave rise to the separate charge against Adams. 29Adams told Lee to get out and Castle said "Get out, this is my house". 30At this point "Larry Davies came out of his home (that is his parents' home) at 30 Glenmore Crescent) ..... He was wearing a bathrobe". The appellant had not been wearing a bathrobe when he had been inside 28 Glenmore Crescent. As the appellant drew closer he asked "what's going on?" and he then threw a punch at Butler which Butler ducked. 31Butler and Lee walked away from the house. They were picked up by Christopher and his girlfriend, who were in a car, 32Butler went to Macksville Hospital where he remained for several hours. Butler gave the following evidence about his injuries:- "The back of my head was split open which required stitches, I think it was about 8 centimetres long. I have still got a big scar down there, I can show you where it was". Butler than showed the scar to the jury. 33Butler said that he had chipped teeth and a broken left arm. "My right middle finger required the doctor at Macksville to remove the nail and that required surgery and stitches to hold all the bone fragments together". 34Butler was shown photographs of himself, which had been taken a couple of days after he was assaulted. One of the photographs showed marks on Butler's back, which he thought had been caused by the lump of wood, that is the curtain rod, "because it's got all the marks on it from the shape of the timber". Another photograph showed bruising and discolouration to the back of Butler's legs where he had been hit with the curtain rod by the appellant. 35Butler was cross-examined at considerable length by all three defence counsel. Lee 36It is unnecessary to refer to much of Lee's evidence in chief, because leave was given to the Crown to cross-examine her and much of the evidence elicited in cross-examination differed substantially from the evidence she had given in chief. 37In her evidence in chief Lee said that on the night of 27 May 2006 she and Butler had been at 28 Glenmore Crescent. She was woken by the sound of banging and screaming. She described Butler being assaulted by Adams with a baseball bat. However, she did not know if there was another male involved in the assault on Butler. She saw the appellant "at the end of the night" in a dressing gown and holding a dog lead. She described the assaults on her by Adams. 38The Crown Prosecutor made an application for leave to cross-examine Lee and leave was granted. 39In cross-examination of Lee the Crown Prosecutor had Lee identify a statement she had made to police on 1 June 2006 and Lee accepted that the statement was a correct version of events. The cross-examination then largely consisted of the Crown reading paragraphs of Lee's statement, which Lee then accepted were correct. These paragraphs included the following:- "I fell asleep on the lounge, Matt was lying on the floor, I was woken up by loud banging on the front door, I got up and so did Matt, the banging got louder and louder and Matt handed me his mobile phone and my mobile phone, he pushed me towards the lounge room a bit, Matt started to walk to the kitchen which then goes to the door where the banging was coming from." "There was a huge crash, I think I was on the phone at the time to the police". "I can't recall if I finished the call, I went into the kitchen and I saw Larry Davies and another male in the kitchen area with Matt, Larry was wearing a pair of jeans and a jumper, was holding either a piece of wood or a baseball bat." "When I first saw Larry and the other man they had Matt in the corner of the kitchen, and they were both punching and hitting Matt with the wood and the bat. I saw Bree Butler, Matt's wife, behind him in the laundry area, and she was screaming 'Get him Steve" "Get him" "Just get him Steve and get that fucking whore out of my house." "I went up behind Larry and tried to pull him away from Matt as they were still hitting him in the corner of the kitchen. There was blood coming from Matt's head at this stage. It was everywhere, all over him. As I grabbed Larry the male who Bree called Steve grabbed me by the hair at the front of my head and pulled my head down and repeatedly punched me in the back of the head. Steve was almost behind me while I was doing this, but I could see that it was him and Steve pushed me into the wall." "I went and got Matt's phone off the floor and tried to call 112, which is the triple 0 call from the mobile, as I was doing that Larry came up into my face and said 'I hope he was worth it' and as he said this he was holding a long piece of wood in both his hands across his body about waist high." ""Bree was still screaming 'Steve get him' 'Get him out of the house. Larry went out of my sight. The next thing I knew was that Steve and Matt were in the lounge room and fighting and I could not see Bree but she was still screaming 'Get him' 'Fix it Steve'. I could also hear Bree laughing at me at times." "Steve and Matt were still struggling over the baseball bat that Steve had. Matt had Steve by the throat at one stage in the corner of the lounge room. I don't know where Larry came from but he appeared in the lounge room and hit Matt across the back of the legs with a piece of wood. The piece of wood was about three or four foot long, was like a rod shape, like a curtain rail, and he hit Matt with force, as I heard the wood cut through the air." "Matt was able to grab a wooden ornament which was something that he got from Fiji, and he used it to defend himself." "Both Larry and Steve then began to hit Matt with the bat and piece of wood, and eventually the wooden ornament that Matt had smashed. Matt had blood all over him, and Steve and Larry stopped hitting Matt and Larry left the room again, and Steve said 'You can go, you can get the fuck out of this house.'" "Steve eventually let go of my hair. Matt and I walked up the driveway, Steve was behind us making sure we left. Bree was still on the phone. As we walked up the driveway Larry appeared from somewhere, Larry lives next door to Matt. Larry was wearing a dressing gown or a bathrobe." "Larry swung a punch at Matt and it missed. Matt and I continued to walk up the hill. Matt had the phone with him, so I used it to call the police and also Matt's parents." "Matt was in a bad way and I thought he was going to pass out" 40Lee was also cross-examined at length by defence counsel. 41There were a number of other witnesses in the Crown case but none of them had been an eye witness to the events inside the house at 28 Glenmore Crescent on the night of 27 May 2006.

The defence cases at the trial 42Each of the accused gave evidence. The appellant 43The appellant gave evidence that on the evening of 27 May 2006 he had had dinner with the co-accused at a tavern and had then spent some time at two hotels with them. 44Adams drove the appellant to the appellant's parents' house at 30 Glenmore Crescent, where the appellant was living. The appellant went to bed. Later the appellant heard some yelling and screaming. He got out of bed and put a bathrobe on. From the house at 30 Glenmore Crescent he saw Butler and Lee walking down the driveway. The appellant left the house "and took a swing" at Butler, which missed. 45The appellant denied that he had at any time on 27 May 2006 gone into the premises at 28 Glenmore Crescent, while Butler was there. 46The appellant's defence case, accordingly, was that he had not gone inside the house at 28 Glenmore Crescent and had taken no part in any of the events which occurred inside the house. The only violence he had committed or attempted to commit was to throw an ineffectual punch, after Butler and Lee had left the house after having been assaulted. 47The appellant's mother gave evidence corroborating the appellant's evidence. Adams 48Adams gave evidence that on 27 May 2006 Adams and the other two accused had dinner at a tavern and then drinks at two hotels. (At the trial the accused were aware that there was cctv footage showing them leaving the second hotel at 10.53pm). 49The three accused drove to 30 Glenmore Crescent, where the appellant was dropped off at his home. Adams did not see the appellant again for some time. 50Adams and Castle saw a light on in the house at 28 Glenmore Crescent. There should not have been any light on in the house because Castle had had the electrical fuses for the house removed. Adams and Castle decided to take a closer look. They saw Butler's vehicle parked near No. 28 Glenmore Crescent. 51Adams smashed the passenger's side window of Butler's vehicle with his hand, because he was "frustrated". 52Castle tried to open the front door of the house. For a time the door would not open but then it swung open. 53Butler and Lee were inside the house. Lee was holding the Fijian War Club. Butler was not holding anything. Adams himself did not have anything in his hands. 54Butler grabbed Castle and smashed her head straight into the door. Adams intervened and pushed Butler away from Castle. 55Adams and Butler wrestled with each other in a number of rooms of the house. Neither Adams nor Butler had any weapon but Lee attempted to hit Adams with the Fijian war club. 56Eventually Adams said to Butler "Just get outside" and "He walked past me and that was it". However, Lee jumped on to Adams's back 57Butler and Lee began walking down the driveway. At that stage Adams saw the appellant standing on the veranda of his parent's house. The appellant "wasn't involved in it ... he wasn't there". 58Adams said that on the night of the 27 February 2006 he had not had any implement or club or any other weapon. Castle 59Castle gave evidence that from December 2005 onwards Castle had wanted the relationship between herself and Butler to end and for Butler to move out of 28 Glenmore Crescent. There had been various incidents between them, including a physical assault by Butler on Castle on 26 January 2006. Castle commenced a relationship with Adams. 60In the middle of the day on 27 May 2006 Castle has spoken to Butler, telling him that she had a tenant moving into 28 Glenmore Crescent on the following Monday and she did not want Butler in the house. 61On the evening of 27 May 2006 she had dinner and then went to hotels with the other two accused. 62Later they dropped the appellant off at his parent's home. Castle and Adams saw lights on at 28 Glenmore Crescent and saw Butler's vehicle. 63Castle banged on the door of the house and called out "Get out Matt". The door opened from the inside. Butler got Castle's head and slammed it against the door. Lee was standing behind Butler holding a "bat". 64Adams and Butler grappled with each other in " a bear hug". Adams called out to Castle to call the police. Castle went outside and called the police. She remained outside. She heard swearing and banging from inside the house. She saw Butler leave the house. He had "a bloody nose and a bloody mouth". 65Later the appellant appeared. He was in a dressing gown. He had not been at 28 Glenmore Crescent.

The appeal against conviction 66There was only one ground of appeal against conviction, namely:- The trial judge erroneously directed the jury as to the specific intent necessary to constitute the offence of maliciously wounding with intent to do grievous bodily harm. 67As indicated earlier in this judgment, this charge was based on s 33 of the Crimes Act, as in force at the time of the alleged offence. Section 33 then provided, so far as is relevant, that:- "Whosoever: maliciously by any means wounds ...... any person with intent ...... to do grievous bodily harm to any person ...... shall be liable to imprisonment for 25 years". 68At the trial the trial judge gave the jury both written directions and oral directions. 69Copies of the written directions the trial judge proposed to give were circulated by the trial judge to all four counsel (the Crown Prosecutor and counsel for each of the three accused) some days before the summing up commenced. I infer that the written directions the trial judge ultimately gave the jury were the same, or substantially the same, as the proposed written directions which were circulated to counsel. No counsel made any criticism of the proposed written directions. 70In the written directions given to the jury the trial judge under the heading "Count 1 - Malicious wounding with intent to do grievous bodily harm" stated:- Acting with malice or maliciously means that at the time of committing the act giving rise to the charge the accused acted either: 1.with the actual intention of inflicting the kind of harm that was in fact done, or 2.recklessly as to whether that harm would occur or not. The terms "malice or maliciously" here relate to the consequences of the accused's actions and the accused must either have intended that type of consequence to be the result of what he/she did or have been reckless as to whether that consequence would result from his/her action. Reckless: An act is a reckless act in this context if an accused person, realizing that some physical harm may be caused by his actions, went ahead anyway. It is not necessary that the accused realises the degree of harm that was in fact caused, provided that he realized that harm of that type would possibly occur. The accused cannot be found to have acted recklessly unless the Crown proves that the accused actually thought about the consequences of his act and at least realized the possibility of some harm of that type occurring. The Crown can rely on all the surrounding circumstances to enable it to prove that the accused did think of those consequences. You can see that there are two separate but alternative ways in which a person can act maliciously. If you are satisfied beyond reasonable doubt either that the accused had the intention to bring about the type of consequence that resulted from his/her conduct or that the accused acted recklessly in relation to the consequences of what he/she did, then you would be satisfied that the accused acted maliciously for the purpose of the offence charged against him/her. 71A little later in the written directions and under the same heading the trial judge summarised the Crown case against each accused. In this part of the written directions the trial judge stated:- The case against each of the accused is that each of them is responsible for the injuries suffered by Mr Butler on 27 May 2006. The Crown case is that Mr Adams and Mr Davies actually caused the injuries and Bree Castle is liable because she encouraged them and each of them to cause these injuries. The Crown alleges that Mr Adams and Mr Davies attacked Mr Butler with a baseball bat and a curtain rail and either intended to cause really serious injury to Mr Butler or were reckless about whether they caused such injury to him and Miss Castle supported and encouraged this. 72Under the heading "Alternative Count" in the written directions his Honour stated:- Alternative Count: In considering Count One, if you are satisfied beyond reasonable doubt that the accused or any of them deliberately or recklessly wounded Mr Butler, but you are not satisfied beyond reasonable doubt that they intended to cause grievous bodily harm, you are entitled to bring in an alternative verdict of guilty of malicious wounding. 73In his oral summing up the trial judge said:- Coming to the specific directions, - malicious wounding with intent to cause grievous bodily harm. This is very old language and what it means is at the time of the events that gave rise to charge the accused actually intended to inflict the kind of harm or was reckless about whether that harm would occur or not. And malice or acting intentionally means the accused must have intended the kind of consequence to be what he did or to have been reckless as to whether that consequence would result. Now recklessness, an accused person realising some physical harm may be caused by his action went ahead anyway, it is not necessary he realises what in fact what the degree of harm in fact was caused provided he realised that some sort of harm could occur. So if I come at you with an axe and swing it at your head and you duck and I say "well there you are you got out of the way that was a bit of a joke wasn't it", you can say I was acting recklessly. There I was swinging an axe at your head. Now if I connected with your head with an axe, you would draw the conclusion fairly readily either I was intending to cause you pretty serious harm or I was reckless. I was going to cause you some harm and I did not really care whether I caused it or not. If you did not get out of the way that is what would happen. Well either is sufficient as the first element that has to be proved against an accused person that the person acted either deliberately in that sense or he acted maliciously. 74A little later in the oral summing up the trial judge gave directions about the alternative count: Now the alternative count to count 1. Count 1 is malicious wounding with intent to cause grievous bodily harm. It is possible to bring in an alternative verdict, if you are not satisfied they intended. If you are satisfied, let me put it to you this way. If you are satisfied that these three people or any of them maliciously wounded Mr Butler, but you are not satisfied that they intended to do grievous bodily harm, then you can bring in an alternative verdict, just a guilty of malicious wounding simply. 75After the trial judge had concluded giving his summing up, no application was made by any counsel to vary either the written or oral directions which had been given, subject only to the qualification that his Honour's attention was drawn to a couple of typographical errors in the written directions which have no relevance to the present ground of appeal. 76On the appeal it was accepted by counsel for the Crown that both the written and oral directions contained a misdirection about the element of intent to do grievous bodily harm in the offence of maliciously wounding with intent to do grievous bodily harm. Both the written directions and the oral directions could have conveyed to the jury that they could find the accused guilty of the s 33 offence, if they were satisfied either that the accused intended to do grievous bodily harm or that the accused were reckless and that "reckless" in this context meant a realisation of the possibility of some physical harm (and not necessarily grievous bodily harm) resulting from an action and, notwithstanding that realisation, going ahead with the performance of the action. The jury should have been directed that they could not convict the accused of the s 33 offence, unless they were satisfied that the accused had the intent to do grievous bodily harm. Recklessness, although it might be sufficient to satisfy the element of "maliciously" in the offence would not be sufficient to satisfy the element of "intent to do grievous bodily harm". The misdirection in directing the jury about the s 33 offence was not cured by the correct directions given by his Honour about the statutory alternative offence under 35 of the Crimes Act , as it then stood. 77The present case is similar to R v McKnoulty (1994) 77 A Crim R 333, in which the charge was also a charge under the former s 33 of the Crimes Act. 78In McKnoulty original directions and then further directions were given by the trial judge. Having referred to all of the directions that had been given at the trial, Hunt CJ at CL, who gave the leading judgment in the Court of Criminal Appeal, said at 346:- "I am satisfied that the jury would have understood the charge as directing them that, if they are not satisfied that the appellant intended to inflict grievous bodily harm, it was nevertheless sufficient that he foresaw that his actions would probably lead to grievous bodily harm in order to convict him of the offence charged". Hunt CJ at CL characterised such a direction as "erroneous". 79As I have already noted, no objection was taken at the present trial to either the written directions or the oral directions. On the appeal counsel for the Crown submitted that leave under rule 4 of the Criminal Appeal Rules to rely on the ground of appeal should be refused. 80Counsel for the Crown pointed out that a draft of the written directions the trial judge gave had been sent by the trial judge to counsel for the appellant at the trial (and the other trial counsel) some days before the trial judge commenced his summing up, thus affording trial counsel an ample opportunity to consider the proposed directions. If objection had been taken to the written directions or to the oral directions given in the summing up, the error could readily have been rectified and correct written and oral directions given to the jury. 81Counsel for the Crown referred, appropriately, to previous decisions of this Court in which the obligations of trial counsel to assist the trial judge have been emphasised and in which it has been stated that, if leave is required under rule 4 to rely on a ground of appeal, the onus is on the applicant for leave to persuade the Court of Criminal Appeal that a miscarriage of justice may have occurred, before leave can be granted. See for example R v Abusafiah (1991) 24 NSWLR 531 at 536. 82However, counsel for the Crown, very fairly, also referred the Court to Ka Chung Fung v R (2007) 174 A Crim R 169, where Latham J, with the concurrence of the other members of the Court including the Chief Justice, said at 179 (48), citing R v Gulliford (2004) 148 A Crim R 558 at 579 (113), that in a case where there has been a failure by the trial judge to direct correctly or at all about the elements of the offence, an applicant for leave under rule 4 will generally be able to persuade the Court of Criminal Appeal that a miscarriage of justice may have occurred. 83In the present case there was a failure by the trial judge to direct correctly about an element of the offence and I am persuaded that a miscarriage of justice may have occurred (without foreclosing the question whether a miscarriage of justice did actually occur). Accordingly, I consider that leave under rule 4 should be granted. 84A further issue is whether this Court should, notwithstanding the error in the directions, apply in favour of the Crown the proviso to s 6(1) of the Criminal Appeal Act , on the basis that it considers that no substantial miscarriage of justice actually occurred. 85The principles to be applied by a Court of Criminal Appeal in deciding whether to apply the proviso were discussed authoritatively by the High Court in Weiss v The Queen (2005) 224 CLR 300 especially at 316-318 (41-47). Some of the principles stated by the High Court in Weiss are that the appellate court must itself decide whether a substantial miscarriage of justice has actually occurred; the appellate court must itself make its own independent assessment of the evidence; the appellate court must make due allowance for the fact that it is proceeding on the record of the trial; the appellate court must have regard to the whole of the record, including that the jury returned a verdict of guilty; that the standard of proof is proof beyond reasonable doubt; that a necessary but not necessarily a sufficient condition for the appellate court to apply the proviso in favour of the Crown is that the appellate court is itself satisfied beyond reasonable doubt that evidence properly admitted at the trial proves beyond reasonable doubt the accused's guilt of the offence on which the jury returned the verdict of guilty; there will, however, be cases, where, although the appellate court is persuaded to the requisite standard of the appellant's guilt, it would not be proper to apply the proviso, for example where there has been a significant denial of procedural fairness or where there has been a "serious breach of the presuppositions of a trial". 86A matter which this court is entitled, and indeed required, to have regard to, is that the jury returned a verdict of guilty against the appellant on the s 33 charge. In reaching that verdict of guilty the jury must necessarily have been satisfied beyond reasonable doubt that the evidence of Butler and Lee should generally be accepted, that the appellant had been a party to a joint criminal enterprise, that the appellant had entered the house at 28 Glenmore Crescent and had joined in the assaulting of Butler and that the appellant was not, as he alleged, in bed at 30 Glenmore Crescent. 87Earlier in this judgment I summarised some of the evidence of the victims Butler and Lee. Having conducted my own independent examination of the evidence, including the cross-examination of Butler and Lee, I am satisfied beyond reasonable doubt of the appellant's guilt on the s 33 charge, including that he had the intent to do grievous harm, that is really serious bodily injury, to Butler. In reaching this conclusion I have had particular regard to the evidence that the three accused went together in a joint enterprise to the house at 28 Glenmore Crescent, that Adams was armed with a baseball bat and the appellant was armed with a curtain rod, that the front door to the premises was smashed in, that the two male accused immediately attacked Butler, that the two male accused struck Butler with their weapons, including blows directed to Butler's head, punched him including punches to the head and rammed Butler's head into a wall a number of times and that Butler was wounded in the head. 88I do not consider that there was a serious breach of the pre-suppositions of a trial. However, there was a failure by the trial judge to correctly direct the jury on an element of the offence charged and the question arises whether that amounted to a significant denial of procedural fairness. 89In considering this question it is important to note that the appellant's principal "defence" was a defence of alibi, that he was not at the scene of the crime when the crime was committed. The misdirection about an element of the offence charged was irrelevant to the defence of alibi. 90It is true that counsel for the appellant in his closing address did make an alternative submission to the jury that the Crown had not established an intent to do grievous harm. However, this alternative submission was very much subordinate to the principal submission that the jury would not be satisfied beyond reasonable doubt that the appellant had been present at 28 Glenmore Crescent. 91In McKnoulty the Court of Criminal Appeal, having found that the trial judge's directions were erroneous, declined to apply the proviso in favour of the Crown. However, notwithstanding the similarity in the error in the directions given to the jury, McKnoulty can be distinguished from the present case. In McKnoulty the appellant had conceded at the commencement of the trial that he was guilty of the offence of maliciously inflicting grievous bodily harm (an offence under s 35 of the Crimes Act , as it then stood) but disputed that he had an intent to do grievous bodily harm. Accordingly, the misdirection by the trial judge about the element of the offence of intent to do grievous bodily harm directly related to the principal issue in the trial. In McKnoulty counsel for the accused at the trial objected to the directions originally given by the trial judge and sought a redirection, which would have been correct, that the accused could be found guilty, only if the jury was satisfied beyond reasonable doubt that the accused had the intent to inflict grievous bodily harm. The trial judge, although giving some further directions, declined to give the direction sought by counsel. 92This court has on occasions applied the proviso in favour of the Crown, notwithstanding an omission to direct or an error in directing on an element of the offence charged. See for example R v Gulliford. 93In my opinion, this Court should apply the proviso to s 6(1) of the Criminal Appeal Act in favour of the Crown and consequently the appeal against conviction should be dismissed. There was no application for leave to appeal against sentence, in the event of the appeal against conviction being dismissed. 94HALL J: I agree with the reasons and orders proposed by James J. 95PRICE J: I agree with James J.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 February 2011