The direction
24 The trial judge in his summing up made clear the matters that were required to be proved beyond reasonable doubt. He also referred to the approach of the Crown, as follows:
The Crown argues, and I will come to this in a little while, that one of the things that you can take into account in determining what the intention of the accused indeed was is what the outcome was. If I strike someone with a feather, you would not infer that I have any intention of bringing about some real harm to them. If on the other hand it is not a feather, it is a machete that I use, then you might infer from that there is an intention to cause some really significant damage to that person; and from the result you could see, so the argument runs, that must have been the intention because to believe otherwise, to not have the intention would just be contrary to your own human experience. If you deal somebody a very serious blow with a very serious object, then commonsense will tell you you must have meant to do them some real harm. That is part of the way in which the Crown argues its case.
But in any event, those are the elements which the Crown has to establish beyond reasonable doubt: that it was the accused who inflicted this serious injury, namely brain damage as the result of a blow to the head, the top of the head, that he did that deliberately, and that at the time he did it he had the intention that she should suffer some really serious physical harm, not necessarily the exact harm which in fact transpired.
25 His Honour then proceeded to explain the statutory alternative and the absence of the need to prove the specific intent of intention to cause very serious physical harm:
It is convenient perhaps to deal now with the alternative, because as the Crown said to you in her address, and indeed as Mr Flynn dealt with in his address as well, if you are satisfied beyond reasonable doubt that the first and second of those elements were established, namely that it was the accused who inflicted this serious physical harm on Ms Barry and that he did that deliberately, but you were not for some reason satisfied beyond reasonable doubt that he had the intention of doing her real damage at the time that he inflicted the harm, then you would acquit him of the charge which it has brought, but you would then say not guilty as charged but guilty of maliciously inflicting grievous bodily harm; that is, perpetrated the harm deliberately but doing it without the intention to bring about such a serious, or indeed any really serious result.
26 After discussion with counsel, the trial judge directed the jury on intoxication. The Crown had at first opposed such a direction upon the basis of what the appellant had said in his record of interview. The Crown Prosecutor, on reflection (and perfectly correctly) agreed that there should be such a direction. At the end of the afternoon of 22 August, the trial judge gave the following direction on intoxication:
There is one other thing that I should speak to you about this afternoon and that is the concept of intoxication. I am reminded of it by virtue of the fact that I have just been dealing with the very high blood alcohol content registered by Ms Barry. Now this charge which the Crown has brought is called in law a crime of specific intent and that is because it contains, as I have explained to you, the third element that he did this, caused a really serious harm, deliberately and that he intended to do her some really serious harm. So that is the specific intent.
Now if a person is intoxicated to the extent that they cannot form an intention, they are incapable of forming that sort of intention then they cannot be guilty of the crime which has the specific intent attached to it. What is the evidence of his level of intoxication and does it cause you any reasonable doubt about his ability to form the intention in this case? Well the evidence in his version to the police is that he poured himself five or six Scotches. That they were generous, bigger than a nip, although I do not think there is any further elucidation of just how big these drinks individually were.
So we know that he had taken, indeed the history of this pair over the preceding few weeks would tell you that each had something to drink on this day, so we know that he had had something to drink. How intoxicated was he? Well there is very little evidence of that other than his description of what he had taken. The police asked on a number of occasions and you will look at the recorded interview with this in mind as well as a number of other things. They asked him whether he was affected at various stages, whether he was affected when he was talking to them, whether he had been affected by alcohol in times earlier during the day and evening. And he said no. But you have got the way he looks to guide you as well.
It is a matter for you but in order to be incapable of forming the necessary intention you have got to be intoxicated to a pretty significant level but nonetheless I need to tell you that as a matter of law that if you were not satisfied that he had the capacity to form the necessary intent because of a level of intoxication based upon that evidence then you could not find him guilty because he did not have the ability to form the intention, consequently did not have the intention.
27 The direction was as to capacity to form the specific intent. There was no direction as to the relevance or possible relevance of intoxication to whether the appellant did (as opposed to could) form the relevant specific intent.
28 On appeal the Crown accepted this as an error. The judge, however, returned to the topic next morning. What he said the next morning cured, so the Crown argued, any defect of the previous afternoon. The trial judge said the following to the jury:
You will remember that I said in summary that here the Crown has charged an offence of specific intent, that is, that the accused maliciously deliberately inflicted grievous bodily harm with the intention at the time of doing that of causing grievous bodily harm.
Because the Crown needs to establish beyond reasonable doubt that the accused had a particular mind set and intention, it is relevant to consider whether he had the capacity to form such an intention, and if somebody is so intoxicated they lose the capacity to form an intention, then of course they can't have the intention.
So the Crown needs to negative the idea that the accused was so intoxicated that he just wasn't able to form an intention. The Crown seeks to do that by pointing to the paucity of evidence about just how intoxicated he was. He himself says he poured five or six generous measures of scotch. I do not recall there being any detailed evidence at least over what period of time the number of drinks was consumed. In any event, the Crown says he repeats on a number of occasions during the course of his recorded interview the fact that he was not, in his own view at least, affected.
So the Crown says he certainly had the capacity to form the intention. It remains, of course, a question of fact for you to determine whether the Crown has proven beyond reasonable doubt that he had the intention, and the Crown seeks to do that by a number of other methods which I rehearsed for you yesterday - the nature of the injuries, the circumstance, and so on.
That, of course, relates to an offence of specific intent. You will remember I was instructing you yesterday that there is available to you an alternative; that is, if you are satisfied of two things, namely that the accused inflicted grievous bodily harm and that he did this deliberately, non-accidentally, but you were not satisfied that he had the requisite intent that he intended that she should suffer some really serious harm at the time that he had attacked her, if I may put it in that short form, then you would come to the alternative of simply convicting him of assault inflicting grievous bodily harm without the intention.
Of course, if you drop the idea of the specific intention, of course the concept of intoxication by alcohol or any other means disappear. It has no longer any relevance because it is no longer an offence of specific intent. I hope I have not made that too obscure, and it leads me to put it this way to you; that when you return, assuming you have agreed upon the verdict, you will be asked this question by my associate.
29 On appeal the Crown relied, in particular, upon the part of the direction emphasised in the above quotation.
30 In my view not only was the direction on intoxication given on the afternoon of 22 August flawed, but it was not cured by what was said on 23 August.
31 It was common ground on appeal (as it was at the trial) that intoxication was irrelevant, except as to the specific intent, that is, the intention to cause grievous bodily harm. Part 11A of the Crimes Act (ss428A-428I) deals with intoxication. Section 428B deals with specific intent, as follows: