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.