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[2013] NSWCCA 320
Court of Criminal Appeal (NSW)
2013-05-08
Beazley P, Fullerton J, Campbell J
Original judgment source is linked above.
Wells DCJ File Number(s): 2010/259493
[This headnote is not to be read as part of the judgment] On 15 March 2012, Kylie Anne Flanagan (the appellant) was convicted by a jury of wounding Joshua Wood (the complainant) with intent to cause him grievous bodily harm, contrary to the Crimes Act 1900, s 33(1)(a) and of affray, contrary to the Crimes Act, s 93C(1). The appellant appealed against her conviction on each count on the following grounds: (1) A miscarriage of justice had been occasioned by the failure on the part of the trial judge to leave self-defence to the jury; (2) A miscarriage of justice had been occasioned by the failure on the part of the trial judge to explain the legal consequences of an accidental wounding; (3) A miscarriage of justice had been occasioned by the trial judge's evidential analysis in the summing up that there was "nothing to suggest" that the acts that were said to constitute the affray were lawful; and (4) The verdict is unsafe and unsatisfactory. Pursuant to the Criminal Appeal Rules, r 4, the appellant required leave to raise grounds 1, 2 and 3. The Court dismissed the appeal. Held by the Court (Beazley P, Fullerton and Campbell JJ): (1) In respect of (1): Leave under r 4 to raise ground 1 of the appeal was refused because had the appellant sought a direction on self defence at trial, the trial judge would and should have refused it: [93]. The elements of the defence of self defence in the Crimes Act 1900, s 418 were not satisfied by the evidence in this case: [86]-[93]. (2) In respect of (2): Leave under r 4 to raise ground 2 was refused because the ground involved an attempt by the appellant to argue matters before the Court that were not issues in the trial, did not have a basis in the evidence and amounted to an attempt to run a different case on appeal: [113]. (3) In respect of (3): Leave under r 4 to raise ground 3 of the appeal was refused: [127]. In the context of the trial judge's direction, her Honour did not say that there was nothing to suggest that the appellant's actions were lawful: [119]. The trial judge was not under an obligation to direct the jury in respect of self defence or the citizen's right to arrest: [121]-[126]. (4) In respect of (4): Having made an independent assessment of the evidence, the Court was satisfied "upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt" that the appellant deliberately inflicted the wound sustained by the complainant: [153]. Applied: M v The Queen [1994] HCA 63; 181 CLR 487 at 493.
Judgment 1THE COURT: On 15 March 2012, Kylie Anne Flanagan (the appellant) was convicted after trial of wounding Joshua Wood (the complainant) with intent to cause him grievous bodily harm, contrary to the Crimes Act 1900, s 33(1)(a) and of affray, contrary to the Crimes Act, s 93C(1). The maximum penalty under s 33(1)(a) is 25 years imprisonment with a standard non-parole period of 7 years. The maximum penalty under s 93C(1) is 10 years imprisonment. 2On 28 June 2012, the appellant was sentenced on the wounding charge to 2 years and 6 months imprisonment, consisting of a non-parole period of 10 months to commence on 22 June 2012 and to expire on 21 April 2013 and a balance of term of 1 year and 8 months. A fixed term of 8 months was imposed for the affray charge to date from 22 June 2012. 3On 25 February 2013, the appellant was granted bail by this Court as provided for by the Bail Act 1978, s 30. 4The appellant has appealed against her conviction on each count. There is no application for leave to appeal against sentence. Four grounds of appeal are relied upon: Ground 1: A miscarriage of justice has been occasioned by the failure on the part of the trial judge to leave self-defence to the jury. Ground 2: A miscarriage of justice has been occasioned by the failure on the part of the trial judge to explain the legal consequences of an accidental wounding. Ground 3: A miscarriage of justice has been occasioned by the trial judge's evidential analysis in the summing up that there was "nothing to suggest" that the acts that were said to constitute the affray were lawful. Ground 4: The verdict is unsafe and unsatisfactory.
The case at trial in summary 5At about 2.15 am on 27 May 2010, the appellant's younger brother, Jason Wilson, was involved in a fight with the complainant in Hunter Street, Newcastle. Both men were intoxicated. A security guard intervened and the two men were separated. Somewhere in the order of 30 minutes later, at another location on Hunter Street, the same two men were involved in a second fight, by which time the appellant had joined her brother. She also became involved in the second fight. It was the Crown case that the appellant stabbed the complainant in the chest with a knife in the course of the fight. The second fight was captured on CCTV. 6It was the Crown case that the CCTV footage showed the appellant armed with a weapon of some kind which she thrust at or in the direction of the complainant, and that the same footage also showed her participation in the affray charged as the second count on the indictment. It was also the Crown case that the surrounding circumstances, including: the timing of the fight; the wound with which the complainant presented within minutes of the fight; the police investigation of the crime scene; and the medical evidence, rendered the Crown case that she inflicted the stab wound as the only reasonable conclusion open on all the evidence. No weapon was located by investigating police. 7The police located a jumper and shirt in the gutter close to the where the Crown alleged the stabbing occurred. There was no blood on the shirt or jumper. The complainant identified the jumper as his and that he was wearing it on the night he was stabbed. He could not remember the shirt. The Crown relied on the absence of blood on the shirt and jumper to counter a suggestion that the wounding had occurred prior to the confrontation in which the appellant became involved and the complainant's clothing had been removed. 8The wound suffered by the complainant was described by Dr Ashour, the physician who treated him at the John Hunter Hospital, as an open chest wound in the right lower chest with a right side pneumothorax with mild hemothorax (that is, a wound involving a breach of the covering of the lungs but without significant haemorrhage into the pleura). It was the doctor's evidence that the edges of the wound were not corrugated or jagged and likely to have been the result of a single penetrating injury with a sharp object. Given the appearance of the wound, he thought the probabilities favoured it having been caused by knife or other sharp object. When he was asked under cross-examination whether that would include a piece of broken glass, he thought it possible, but that venturing an opinion as to what might have been the type of "sharp object" was beyond his expertise. 9The doctor was not asked and no evidence was otherwise led to suggest how the single penetrating chest wound might have been caused by a piece of broken glass, whether wielded by an assailant or by the complainant falling onto a piece broken glass. There is no mention in the evidence of broken glass at the scene and no questions were asked of the police who designated it a crime scene as to whether they saw broken glass at the scene. 10The appellant contended that it was part of her case at trial that she involved herself in the fight between her brother and the complainant to get the complainant arrested, and then as the violence escalated to stop the fight. There was no evidence of the former and the latter contention depended upon the view taken of the CCTV footage. 11There was no blood on the appellant when she was spoken to by police later that day or in the vehicle in which she was driven from the scene. Police did, however, identify a trail of the complainant's blood which commenced on Hunter street at a location proximate to where, on the Crown case, he was stabbed and trailed into Steel Street where he knocked on the door of a brothel and where he was later treated by ambulance officers. His clothing which had been left at the scene of the stabbing and seized by police was not damaged in any area contiguous with his chest wound. The CCTV footage showed that his shirt and sweater were pulled off by Mr Wilson and before the involvement of the appellant a minute or so later. 12The appellant gave evidence that she was not armed with a knife when she joined her brother, but that when she got out of the car she did pick up a stick which she found lying on the ground, as she followed her brother towards where he confronted the complainant. She said she only physically involved herself in the fight in an attempt to break it up and that she dropped the stick as she tried to place herself between the two men with that intention. To the extent that the CCTV footage was capable of revealing the course of the fight (about which there was considerable controversy at trial and on the appeal), the appellant submitted that it was consistent with her case and, further, that what the Crown submitted was a knife she was thrusting at the complainant was probably the stick that she had picked up and that she subsequently dropped. It formed no part of the Crown case that the wounding was caused by a stick. 13It was also the defence case at trial that it was a reasonable possibility that the complainant's chest injury was inflicted before the fight that was captured on CCTV, or after the fight and before he presented at the door of a brothel in Steel Street 120 m away bleeding from the chest. It was also the defence case that it was a reasonable possibility that the wound was sustained during the course of the fight either because her brother had a knife (of which she was unaware) or because the complainant fell onto something sharp when he was on the ground in the course of the fight. 14The complainant was cross-examined to suggest that his chest wound may have been sustained in a confrontation with a person or persons other than those he was fighting with in the CCTV footage, either before that fight or after it and before he went to the brothel in Steel Street. Other than the fight with Mr Wilson in which the security guard had intervened earlier that morning and the fight captured on CCTV in which the appellant and her brother were involved, he denied a violent encounter with anyone else. 15In meeting the defence case that the complainant was stabbed intentionally by someone else before the fight in which the appellant and her brother were involved (and that the wound had partially occluded and then reopened in the fight), the Crown placed particular reliance on the fact that the complainant's jumper and shirt showed no sign of having been cut or torn and that on examination of those items there were no areas of deposited blood. Dr Ashour was unable to comment as to the potential for the complainant's wound to have occluded and then reopened under vigorous exercise (as suggested by defence counsel at trial) given the passage of time between his treatment of the complainant and the trial. He did, however, conceive of the theoretical possibility of this occurring but was unable to comment on the possibility of it having occurred in the circumstances under consideration. 16By the time of the appellant's trial, Mr Wilson had been convicted of affray arising out of the fight with the complainant. He was called as a witness by the Crown in the appellant's trial. In his evidence in chief he denied inflicting the knife wound. This was not the subject of cross-examination by the appellant's counsel. His evidence was, however, the subject of a warning under the Evidence Act 1995, s 165.
The first fight 17Jason Wilson gave evidence that after leaving the Silk Hotel some time shortly after 2 am on 27 May 2010, and in the course of making his way towards another local nightclub on foot, he was attacked by a man who demanded he hand over money and his phone. He said the man tackled him to the ground where he was punched and his head "repeatedly slammed" into the ground. He also believed that he had been jabbed with a syringe, because of a "stinging" sensation on his hand and because the man who had just attacked him looked like "a drongo". 18In response to his call for help, a security guard who saw the fight from his car intervened and separated the two men. The security guard gave evidence that this was at about 2.15 am. The security guard said that the younger man (who, on the evidence, was Jason Wilson) was "shaken up, really scared". He had the impression that the older man (the complainant) was homeless, given his "scruffy" appearance. He said the older man was wearing greyish coloured tracksuit pants that appeared to be falling down as he was walking away. He said the older man's knuckles were bleeding and that he was mumbling and not making much sense. 19Jason Wilson declined an offer to be driven to the police station, saying that he had friends and family up the road. He walked on to Fanny's nightclub where he telephoned his mother, Vicki Wilson. He told her that he thought he had been stabbed with a syringe and beaten up. She gave evidence that her son was "very upset" and that she told him she would come and pick him up. She then telephoned the appellant and told her that her brother had been bashed and stabbed with a syringe and that she did not want to drive into town alone to pick him up. Ms Wilson then drove the short distance from her home at Wallsend to collect the appellant before driving into Newcastle. 20After collecting her son from the nightclub, Ms Wilson said she turned right into Hunter Street intending to drive back to Wallsend. She said her son then said, "[t]here he is", and told her to stop the car, whereupon her son and the appellant got out of the car. 21Meanwhile, according to the evidence, the complainant had visited a nearby brothel, The Asian Star, where he asked for and was given a glass of water (which he refused), before going to the residence of a friend, David Wilkinson, on Hunter Street. He went upstairs and asked his friend for a drink of water. He gave evidence they sat down and talked about the fight, after which he returned to the brothel for a short time before deciding to return to the Silk Hotel to find his friends. 22Mr Wilkinson gave evidence confirming that he received a visit from his friend, the complainant, in the early hours of the morning at premises in Hunter Street, where he lived in an Arts Association. He said the complainant was "upset and intoxicated". He had abrasions on his hand and complained of a lump on the back of his head. On a scale of intoxication from zero to ten, he assessed him to be "about an 8, he was standing drunk, he was pretty drunk". The complainant remained with Mr Wilkinson for about half an hour, consuming a couple of glasses of water before he left.
Jason Wilson's evidence 23Jason Wilson gave evidence in chief that he jumped out of his mother's car while it was still moving slowly in order to confront the man who had attacked him earlier. He could not recall if the appellant also got out of the car. He claimed he said to the man (the complainant), "Remember me?" and, as the man came towards him, he said to him, "Why did you do that last time?". He said the man kept coming and so he "struck out" at the man and punched him once. He said his mother then told him to get back into the car, but he chased the man around the corner. He said that by this time the appellant was out of the car screaming at him and telling him to get back in the car. He said he ended up getting into the car. He said when he got back into the car there was a man in the front seat that his mother had asked for help. He said his mother then took him to the hospital. 24The Crown applied and was granted leave to cross-examine Jason Wilson under the Evidence Act, s 38 given the conflict between his evidence and what was shown on the CCTV footage as to his involvement in the fight and the involvement of the appellant. In cross-examination by the Crown, he agreed he got out of the car and chased the man who he eventually caught. It was then put to him that he moved towards the man who bent over to protect himself. He said that he grabbed the man by the shirt and that the man was bending over at that time which is how his jumper came off. He said despite the CCTV footage showing his sister, the appellant, present at that time, she was trying to break up the fight. It was put to him that the appellant made physical contact with the man on at least two occasions and stabbed him in the course of one of those occasions, having moved around him so she was able to be in contact with him. He denied that occurred. He denied that she had a knife. 25Under the protection of a certificate under the Evidence Act, s 128, he also agreed kicking the man whilst he was on the ground. When it was put to him that his sister pursued the man even after he managed to free himself from the fight, and that this was inconsistent with her trying to break it up, he said that he and his sister chased after the man with the intention of holding him until the police arrived. The Crown then cross-examined him by reference to the CCTV footage with a view to demonstrating that the footage did not show that he chased after the man and that his evidence was given with a view to assisting his sister, who he knew did chase after the man, which he denied. 26Under cross-examination by defence counsel, he said that he heard his sister screaming "get off him, get in the car" as she was pulling on the back of his sweater, but that he continued with the attack despite her efforts to pull them apart. He agreed that he got out of the car on impulse when he saw the man and that he did not discuss with his sister what he was going to do. He said that he had his eyes on his sister during the fight but not the entire time. He said when he was looking at her he did not see anything in her hands and he was confident he did not see a knife. 27Mr Wilson was also asked: "Did you on the night of 27 May 2010 stab [the complainant]?" He answered: "No". This evidence was not challenged in cross-examination.
The complainant's evidence 28In relation to the second fight, the complainant gave evidence that he was on Hunter Street walking towards the Silk Hotel when he heard the sound of car tyres screeching followed by a male voice screaming and yelling, "That's the bloke who stabbed me with the syringe". He said he saw a car full of people and "got scared" and began to run away. He became aware of a male person running beside him screaming and yelling to the other people to hurry. He said he ran a few hundred metres up the road before he became out of breath. He said he started wrestling with a man and tried to protect himself (indicating in the witness box with both hands beside his head). He said he heard screaming and yelling, including from a female voice which he described as "a real crazy voice". He gave evidence of being beaten with "hits coming from everywhere". He thought he might have then dropped to the ground. He described "getting winded, like no energy" and feeling that he was unable to defend himself. 29He said that he then moved away towards the Silk Hotel but it was closed, so he went to a brothel called Cloud 9 on Steel Street. He said he went through the entrance door and then pressed the electric buzzer beside a second door. When a woman came out he complained about being bashed. He said he had not noticed that he had been wounded until she asked him where the blood was coming from. He denied in cross-examination that he could have fallen between Hunter Street and the brothel on Steel Street, although he accepted in cross-examination that on the night he said to the woman at the brothel that he thought he tripped over whilst he was "trying to get away from them" while they were trying to beat him up. As the appellant relied upon the complainant's evidence of tripping in support of ground 2, it is appropriate to refer to the evidence the complainant gave on this in his cross-examination: "Q. Why would you say to the lady at the brothel 'I think I tripped arse over head while I was trying to get away from them', if you hadn't tripped over? A. I might have tripped over when I was getting away from them, like actually, when I was getting beaten up, trying to push away from them to get away." 30The complainant denied that as he ran around the corner into Steel Street he was "so pumped and aggressive that [he] would hit out at anybody that [he] came into contact with". The complainant denied any further confrontation with any person in the foyer area of the brothel or between the corner of Hunter Street and the brothel.
Evidence of eye-witnesses 31Kay Laming gave evidence that at about 2.50 am on 27 May 2010, whilst working as a receptionist at Cloud 9, she heard the front door of the premises slam shut and as she approached the security door she could see a man in the foyer who seemed distressed. There was blood on his forearms and his chest. He was wearing tracksuit pants and one shoe. He was not wearing a shirt. He said something like, "I think someone stabbed me, what sort of a person goes around stabbing people". Ms Laming noticed that he had a cut on one side of his body about 2 cm long and which "looked a bit deep". He was bleeding quite badly and he agreed she should call an ambulance. In cross-examination, Ms Laming denied that at any stage the man mentioned having fallen over. 32Peter Milne gave evidence that at about 2.30 am, he was walking towards the Silk Hotel when he observed an incident on Hunter Street about 10-20 m from the intersection of Hunter and Steel Streets. He said he saw a man lying on the ground being kicked by another man. He said that there were "a couple of girls" standing beside the man on the ground. One of the females was screaming at a man with no shirt to "get off him, leave him alone". He said she was "dressed up like she was going out". The other female was blonde. 33He said the incident appeared to end when the man doing the kicking saw a car pull up and ran into the brothel. The car drove around the corner. Mr Milne approached the open front passenger window of the car and said to the driver, a middle aged woman, "Are you alright? Can I help you?". The woman asked him to get in the car. Mr Milne got into the front passenger seat followed by the man who had been kicked and the female who had been screaming, "Get off him", in the back seat. The car drove down Steel Street and left into King Street. The female passenger asked, "What's this bloke doing in the car?" and the driver replied, "He's helping me". Mr Milne asked what had happened. The female passenger told him that the male had been attacked. The male passenger agreed that is what had happened and showed Mr Milne his hand, saying, "I got stabbed by a syringe". Mr Milne saw a puncture mark and some blood on the man's hand. The female passenger then asked Mr Milne to get out of the car. He did so, suggesting to the driver that she go to the police. Mr Milne then caught a taxi on King Street to Newcastle police station. 34In cross-examination by the Crown, pursuant to leave granted under the Evidence Act, s 38, Mr Milne was played excerpts from the CCTV footage. He agreed that it showed the man with the hoodie (Jason Wilson) kicking the man with no shirt on (the complainant). He agreed that he could be mistaken when he said that it was the man without the shirt who was kicking the man with the hoodie. Mr Milne also agreed that one female, not two, appears on the CCTV footage near the shirtless man and that she was wearing jeans, joggers and a top rather than "going out" clothes. Mr Milne agreed that he may have been mistaken that there was a second female present on the street during the incident. He did not mention a second female in his statement to police. 35Mr Milne also agreed in cross-examination that the incident he observed occurred on the footpath and not in the gutter, as shown in one part of the footage. Mr Milne did not see any sign of an injury or blood on the chest of the shirtless man. 36Mr Milne's evidence was not referred to by the trial judge in the summing up. No complaint is made in that regard. 37Amy Becker gave evidence that she was driving home from work west along Hunter Street on 27 May 2010 when she saw one man beating up another man, who was covered in blood. The men were on the footpath just before the Silk Hotel. When she was approximately 15-20 m from the fight, Ms Becker pulled over to the side of the road and used her mobile phone to call police. 38She observed one man repetitively punching the other man, in the head and on his body. He buckled over. The first thing she saw in any detail was a female trying to stop the man beating up the man who was covered in blood. She appeared to be breaking the fight up by pushing the man who was not covered in blood away and standing in between the two men. Ms Becker heard the female say, "Stop". It appeared to her that: "... everything had already happened, I just caught the tail end of it because the fight was trying to be broken up and the guy was in a white shirt, but it wasn't really white any more it was covered in blood." 39The two men were closer to Ms Becker than the female. They had their backs towards her at one stage and the female was on the other side of them. She then saw that a car pulled over alongside the incident. The police officer she was speaking to on the phone asked her to read out the number plate twice. 40Ms Becker saw the man covered in blood fall to the ground and become more and more covered in blood as the other man continued to kick him while he was on the ground. Ms Becker then saw the female push the man doing the kicking, causing him to fall backwards onto the ground with his hands out to break the fall. The man covered in blood used the opportunity to get up and try to run away onto Steel Street. He was followed by the other man and the female out of Ms Becker's vision. The car parked alongside the incident also sped around the corner onto Steel Street. 41At this time Ms Becker was still on the phone to the police officer. She was asked if she could drive closer so that she could make further observations. She agreed. As she was stopped at the lights she saw two people get into the car that had pulled up and saw the car speed left around the corner of Steel Street into King Street, towards the beach. She turned onto Steel Street and saw the car parked just past the King Street Hotel. She said she saw the man who had been beating up the other man get out of the car. She told the police officer that she did not want to assist further and was advised to leave. As she drove past the car, the police officer asked he if she could see the car in her rear-view mirror and if she could repeat the number plate for a third time. Ms Becker reversed slightly in order to see the number plate. The car then drove past her towards the beach. She saw the man who had got out of the car on her left, holding a discarded chair above his head as if to throw it at Ms Becker's car. She told the police officer she was not helping any more and sped away. 42In cross-examination, Ms Becker said that she did not see the two men in physical contact with one another in the gutter or on the road. 43Ms Becker had the impression that there was blood on the white shirt because of the "dark colouring" and because it appeared to be wet from the heavy way it hung. 44Ms Becker denied in cross-examination that the man she saw holding the chair might not have been someone who got out of the vehicle she was watching.
The CCTV footage 45Police recovered coloured CCTV footage from an external camera mounted in 633 Hunter Street (Exh 6) between 2.30 and 3 am on 27 May 2010 and black and white CCTV footage from an external camera mounted at 621 Hunter Street covering the footpath outside that building (Exh 7). 46The following summary of the black and white footage was relied upon by the Crown at trial (and repeated on the appeal) as supporting the Crown case. It features the appellant following behind her brother as he approaches the complainant from behind and launches an attack on him. In the course of the attack, and as the complainant is bending over and backing up, Jason Wilson pulls the complainant's clothing over his head. The appellant, also from behind, takes a large step to the left around her brother and swings her right arm up away from him. At this point an object in her hand, which has the appearance of a knife, is said to be visible, silhouetted against the footpath. The appellant continues to position herself around her brother and up next to the complainant's right who, by this time, has nothing on his upper body. The appellant moves as if to make physical contact with the complainant on at least two occasions. The Crown invited the jury to draw the inference that it was on one of those two occasions that she stabbed the complainant. Meanwhile, Jason Wilson is seen kicking the complainant while he is on the ground. Shortly thereafter he is seen to disengage from the complainant and speak to a person in the car driven by his mother. The appellant is last seen chasing the complainant as he runs away. She is alone at this time. 47The appellant and the complainant move out of the picture while Mr Wilson is still seen at his mother's car appearing to speak with her. 48In the coloured footage which is Exh 6, Mr Wilson is then seen running. The appellant is first seen chasing the complainant. Mr Wilson is not in the footage at that stage. Mr Wilson is then seen running after them. The police investigation 49Police attended the brothel in Steel Street at 3.05 am at about the same time as the ambulance arrived. At that time, the complainant was lying in the foyer floor, clutching the right side of his ribs. There was blood on his torso, the floor and the wall. He was taken to the hospital. 50Police remained at the crime scene until the crime scene officer arrived. A crime scene was established around the entrance to the brothel and for about 20 m along the footpath leading to the brothel. About 20 minutes later, a second crime scene was established on Hunter Street after blood was noticed on the corner of Hunter and Steel Streets and clothing was observed near the gutter outside 621 Hunter Street. Small amounts of blood were noted leading from the shirt and jumper (later identified as belonging to the complainant) along the footpath to the brothel. 51A forensic investigator examined the crime scene which ultimately encompassed approximately 64 m of Hunter Street, from 621 Hunter Street to the intersection with Steel Street, and approximately 68.7 m of Steel Street from that intersection to 9 Steel Street. 52An area of apparent blood staining in the gutter in the vicinity of the shirt, jumper and telegraph pole was marked D by the police. (There was no blood located north of that marker in Hunter Street.) Further apparent areas of blood stains appeared at crime scene markers E-V which, on the Crown case, loosely followed the path that the complainant took in fleeing from his assailants to the brothel. A computer aided diagram, drawn to scale, of the intersection of Hunter and Steel Streets showing crime scene markers, items and locations of interest was tendered at the trial (Exh 13). The forensic investigator did not state in his evidence that he had found any sharp object, nor was he cross-examined on whether he had found anything or looked for anything on the ground that might have caused the wound. 53A certificate by an analyst employed at the Division of Analytical Laboratories was tendered (Exh 5). The analyst received a buccal sample from the complainant, together with swabs taken at markers D, M and V at the crime scene. The swabs from the crime scene markers D, M and V tested positive for blood. DNA testing revealed that the complainant has the same DNA profile as the DNA recovered from those swabs . 54At about 8.40 am, police attended Vicki Wilson's home to speak with Mr Wilson. They later returned to the premises and searched Vicki Wilson's car, but found nothing of interest. Later, Jason Wilson attended Waratah Police Station where he was interviewed and underwent a forensic procedure. Both Vicki Wilson and the appellant also participated in electronically recorded interviews on 27 May 2010. At that stage, both women were informed that they were not suspects, not under arrest and were free to leave at any time. 55The appellant was charged with the offences in respect of which she was tried on 30 July 2010. The appellant's evidence 56The appellant's evidence as to the circumstances in which she came to be her mother's car in Newcastle in the early morning of 27 May 2010 was generally coincident with her mother's evidence and the evidence of her brother. She said when her brother directed his mother to stop the car in Hunter Street her only concern was to follow him. She said that when she started to run, she was thinking: "... if there was anything that was going to happen I was there to sort of stop Jason or you know both of them intervene in anything else that had occurred because of the earlier incident". 57She stated that "I probably got three metres and sort of kicked a stick as I was running and then picked that up". She described the stick as 30 to 40 cm in length and about as wide as a 10 cent piece. 58She said she did not turn her mind to what sort of injury she may be able to inflict with the stick, and denied in cross-examination that she had invented picking up the stick in order to explain what she knew was shown on the CCTV footage by the time of trial. 59The appellant said that when she reached her brother and the other man they were wrestling. At this stage, she was still holding onto the stick. Her brother was pulling at the man's jumper. She was thinking that she had to get in between them to break them up. She said she tried to push her brother back with her arm and, when that did not work, she pushed her body in front of her brother's body, moving her body to the right in the process. She said she had to drop the stick in order to get between the two men and push them apart, using both hands. She said she yelled out, "Stop, stop, don't worry about it, get in the car, just leave it". 60She said at no stage did she punch, hit, kick or stab the complainant. She did not have a knife with her. She did not hit or stab the complainant with a stick or push him over. 61The appellant said that at the point of the black and white CCTV footage in Exh 7 when her brother is seen at her mother's car and she has disappeared off the top of the screen, she was walking alongside the man telling him, "Look, just go, get out of here". She said following the fight that was shown on Exh 7, when her brother subsequently caught up to where she was, he went to grab at the complainant a second time. She said her brother lost his balance and that both ended up on the ground, with the complainant on top of her brother punching him. She was unsure for how long they were on the ground before her brother got the complainant on to his back where he was held him down and punched in the mouth. The appellant said she was screaming for help before her brother got up and the other man ran away. The last time she saw the complainant he was on the corner of Hunter and Steel Streets. She said this second incident was not shown on any CCTV footage. At some stage during the second incident the appellant said he pulled her brother by the hood of his jumper. 62The appellant said that at the point of the CCTV footage where the appellant is close to the bus stop sign (after emerging from the bottom right hand corner of the screen) and the complainant has his back to the glass window frontage, appearing to face the appellant directly, "I was telling him to go and that the police would find out who he was anyway". The complainant had no shirt on. The appellant did not notice any sign of blood on his chest at any stage. 63The appellant is seen to continue along Hunter Street towards Steel Street. Her brother is seen coming in the same direction after the appellant and the complainant have passed through. The appellant got into her mother's car at the top of the street. 64The appellant said by the time that she got back into her mother's car on the corner of Hunter and Steel Streets, she felt "scared and just wanted to get out of there". 65During cross-examination, the appellant denied that the information concerning her brother that her mother conveyed over the telephone made her angry and denied that she armed herself with some sort of a kitchen knife or a folding knife before agreeing to accompany her mother into town to pick him up. 66She said that the idea of going to the police station on the way into Newcastle to collect her brother did not occur to her, because she thought going to the hospital was the better option in case her brother was concussed. She agreed in cross-examination that it occurred to her it might be dangerous to get out of the car with her brother given that, according to her brother, the other man had won the previous fight. The appellant denied that it was because of those concerns that she took the knife with her when she got out of the car. She said that her purpose in following her brother out of the car was to identify the person that had attacked her brother earlier. It was put to her that this impossible as she had not been present during the earlier flight. She denied that she stabbed the complainant because she wanted to inflict really serious injury on him because she believed that he had struck her brother with a needle and had potentially infected him.
The grounds of appeal 67Before dealing with the individual grounds of appeal, reference should be made to the principles governing grounds 1, 2 and 3, each of which requires the grant of leave pursuant to the Criminal Appeal Rules, r 4. That rule provides: "No direction, omission to direct, or decision as to the admission or rejection of evidence, given by the Judge presiding at the trial, shall, without the leave of the Court, be allowed as a ground for appeal or an application for leave to appeal unless objection was taken at the trial to the direction, omission, or decision by the party appealing or applying for leave to appeal." 68The Court will only grant leave where it is established that the error of which complaint is made led to a miscarriage of justice: R v Abusafiah (1991) 24 NSWLR 531 at 536; R v Wilson [2005] NSWCCA 20; 62 NSWLR 346 at [20]; Darwiche v R [2011] NSWCCA 62; 209 A Crim R 424 at [170]; Carney v R [2011] NSWCCA 223; 217 A Crim R 201 at [67]. A miscarriage of justice will be demonstrated where there is a fairly open chance that the accused person would have been found not guilty of the offence. Carney at [68]. 69In Darwiche, at [170], the Court (Johnson J, McClellan CJ at CL and James J concurring) used the vernanular phrase "armchair appeal" to describe the situation: "... where counsel not involved in the trial has gone through the record of the trial in minute detail looking for error or possible arguments without reference to the manner in which the trial was conducted: R v Fuge [2001] NSWCCA 208; 123 A Crim R 310 at 319-330 [40]-[45]; Ilioski v R [2006] NSWCCA 164 at [155]." 70In Nudd v R [2006] HCA 9; 162 A Crim R 301 Gleeson CJ, at [9], emphasised that "[a] criminal trial is conducted as adversarial litigation", "[a] cardinal principle" of which is that parties are bound by the conduct of the case at trial by counsel who then appeared. That principle was subject to considerations of fairness. His Honour then stated that: "... As a general rule, counsel's decisions bind the client. If it were otherwise, the adversarial system could not function. The fairness of the process is to be judged in that light. The nature of the adversarial system, and the assumptions on which it operates, will lead to the conclusion, in most cases, that a complaint that counsel's conduct has resulted in an unfair trial will be considered by reference to an objective standard, and without an investigation of the subjective reasons for that conduct." 71Gleeson CJ then referred to the operation of r 4 and, in particular, the issues that arise under that rule where there is a question as to whether the trial counsel's omission or failure to take a particular point was for a tactical purpose. His Honour, after noting that the Court of Criminal Appeal was an unsatisfactory forum for determining such questions, stated, at [10]: "... I mention the practical problems that arise in the application of r 4, because the existence of such problems is of wider significance, and bears upon the principles to be applied in resolving a question of miscarriage of justice. To the extent to which it is reasonably possible, the focus of attention should be the objective features of the trial process ... as far as justice permits, the inquiry should be objective." (emphasis added) 72It is also appropriate to have regard to the remarks by this Court, in Darwiche. The Court, at [170], warned that an appeal: "... does not exist to enable an accused who has been convicted on the basis of one set of issues to have a new trial under a new set of issues which he could and should have raised at the first trial."
Ground 1: failure to leave self defence to the jury 73The appellant submitted that despite it being her case at trial that she did not inflict the wound the subject of the offences charged as alternatives in counts one and two, because self defence was fairly raised on the evidence the trial judge was obliged to leave self-defence to the jury by directing them as to the constituent elements of the defence as provided for in s 418 and instructing them that the Crown was obliged to negative self defence beyond reasonable doubt before they could convict 74As indicated, the leave of the Court is required in order for the appellant to rely upon this ground, as her counsel at trial did not seek a direction as to self defence: Criminal Procedure Rules, r 4. 75The evidence said to give rise to self defence included the appellant's evidence that, to the extent she had any physical involvement in the events, she did so in order to prevent the violent altercation between her brother and the complainant. It was also submitted that self defence was raised by what was revealed in the CCTV footage of the incident, as well as her evidence as to her state of mind at that time. It was put on her behalf that, as she understood matters, her brother had been assaulted and stabbed with a syringe by the complainant earlier in the evening and she was present when they confronted each other a second time to "stop Jason or both of them, intervene in anything else that occurred because of the earlier incident". The appellant submitted that there was circumstantial support for her actions being defensive in the relevant sense in the evidence of two eyewitnesses who described, inter alia, the "female" involved in the incident calling upon the men to stop fighting. 76The Crown submitted that the trial judge was not required to direct the jury on self defence as there was nothing in the evidence that gave rise to the issue: Mencarious v R [2008] NSWCCA 237; 189 A Crim R 219 at [61]; Douglas v R [2005] NSWCCA 419 at [99]-[101]. The Crown also submitted that this was a rigorously run case where the appellant resisted any suggestion that she was armed with a knife, or that she wounded the complainant with a weapon of any kind, and for that reason also leave should not be granted to raise this ground (and the other grounds for which leave was required). This last submission was, in effect, directed to the conduct of trial counsel, the inference being that the omission to seek a direction was not due to oversight or incompetence. In this regard, it should be noted that the appellant expressly eschewed any argument that trial counsel was incompetent. The fact that counsel took a tactical decision not to raise self defence does not of itself foreclose of the obligation of the trial judge, in appropriate circumstances to leave the issue to the jury. The question that arises on the appeal is whether the trial judge should have left the issue to the jury such that the failure to do so has resulted in a miscarriage of justice.
The law 77The Crimes Act, s 418(1) provides that a person is not criminally responsible for an offence if a person carries out the conduct constituting the offence in self defence. Section 418(2)(a) provides that conduct constitutes self defence if and only if the person believes the conduct is necessary to defend herself or himself or another person and the conduct is a reasonable response in the circumstances as the person perceives them. 78Where self defence is left for the consideration of the jury there are three components of the defence which must be the subject of direction by the trial judge. The trial judge is only obliged to leave the issue for the jury if there is a sufficient evidential basis for the first two elements: (i) that the accused believes the conduct is necessary to defend himself or herself or another person (or for one of the other purposes identified in the section and not presently material) and (ii) that the accused carries out the conduct for that purpose (see subs (1)). The third component, that the conduct be a reasonable response in the circumstances as perceived by the accused, only falls to be considered, if the jury are satisfied that there is a reasonable possibility that the conduct was carried out defensively. The question whether the response was reasonable is determined by an objective assessment of the proportionality of the conduct that is relied upon as the defensive response of the accused to the situation as the accused perceived it: Douglas at [79]. 79Section 419 provides that where self defence is raised, the prosecution has the onus of proving, beyond reasonable doubt, that the accused did not carry out the conduct the subject of the charge in self defence. The Crown would negative self defence if it proved beyond reasonable doubt either that the accused did not genuinely believe that it was necessary to act defensively in the relevant sense or that what was done was disproportionate to the danger ort threat as the accused perceived it. 80A trial judge has an obligation in certain circumstances to give directions to the jury, even if the matter is not raised by the defence. The obligation arises where an issue arises on the evidence and may lead to an acquittal. Thus in Gipp v The Queen [1998] HCA 21; 194 CLR 106 McHugh and Hayne JJ said, at 124: "One important exception to the adversarial nature of criminal proceedings is that a trial judge has a duty to direct the jury on any matter that could result in the acquittal of the accused even though the accused deliberately refuses to argue the point" (citation omitted). 81In Pemble v The Queen [1971] HCA 20; 124 CLR 107 Barwick CJ said, at 117-118, that where an issue had been identified in the trial (in that case, the issue of provocation), then, if there was evidence upon which the jury could find for the accused, the trial judge had a duty to direct the jury on that issue even if the issue had not been raised by the defence. 82In Stevens v R [2005] HCA 65; 227 CLR 319 McHugh J observed, at [30], that a jury was entitled to refuse to accept the case that the Crown and the defence had respectively advanced and work out for themselves, on the evidence, what had occurred. Whilst a jury cannot take into account a fantastical or far-fetched possibility, nonetheless, it was for the jury to determine what was reasonable in the circumstances in determining whether the Crown had established the guilt of the accused. 83In Mencarious the Court (McClellan CJ at CL, James and Fullerton JJ agreeing) observed, at [65], that the duty of a trial judge to give directions on a matter not raised by the defence only arose where the relevant issue was raised by the evidence. Where there was evidence of a particular issue, the trial judge had a duty to give a relevant direction so that the jury could determine the matter on the evidence, according to law: see Domican v R [1992] HCA 13; 173 CLR 555 at 561; R v Dudko [2002] NSWCCA 336; 132 A Crim R 371 at [30]. McClellan CJ at CL added: "... a trial judge is not bound to direct the jury in relation to an hypothesis unless it is reasonable having regard to the evidence" (citations omitted). 84In Douglas, the only evidence in the trial was that of the complainant and the accused (the appellant). The appellant's case was a denial of the allegations made against him. The appellant's evidence (at [70] of the judgment) was that he had never hit the complainant unless the complainant had hit him first. No direction as to self defence was given nor was one sought. Simpson J (Adams and Hoeben JJ agreeing), although commenting upon the tactical difficulties that would have faced trial counsel had such a direction been sought, nonetheless stated that he was not precluded from seeking a direction as to self defence, provided that the issue was raised on the evidence. In her Honour's view, self defence was not raised on the evidence. Rather, as her Honour observed: "99 Given that, in respect of this count, the appellant simply denied the conduct alleged against him, it is impossible to see how a direction on self-defence could rationally have been given. On what evidentiary matters was the judge to direct the jury? ... The only evidence was that of the complainant that the appellant had punched her and that of the appellant denying her evidence. There was not the slightest evidence that the complainant had initiated any altercation, whether verbal or physical, and no evidence from which any such inference could be drawn. There was no evidence on which a jury could have any conclusions as to the appellant's perception of the circumstance. 100 While it remained for the Crown to negative a belief on his part that the conduct (that he denied) was necessary to defend himself (as distinct from conduct he engaged in by way of retaliation) nevertheless, there must be some evidential basis before an issue of self-defence may be left to the jury. S419 depends upon the issue of self-defence having been 'raised': see, e.g. Colosimo v Director of Public Prosecutions (NSW) [2005] NSWSC 854, per Johnson J; R v Nguyen (1995) 36 NSWLR 397, per Priestley JA. It was not here raised in any meaningful way. The mere reference, by the appellant in his evidence in chief, to self-defence, in lay terms, did not do that. Nor did generalised assertions that it was the complainant who initiated violence in the relationship." 85This case is not as straightforward as the circumstances that arose for consideration in Douglas. In that case, the appellant denied the conduct alleged against him. In the present case, even on the appellant's version, she involved herself in the fight between her brother and the complainant. The question that arises is what was the nature of that involvement. Was she trying to stop the fight that was initiated by her brother? Was she seeking to defend her brother from an attack (or perceived attack) by the complainant? Or was she assisting her brother to attack the complainant in retaliation for the earlier attack upon him? 86The appellant did not give any evidence that she became involved in the fight because she believed it was necessary for her to do so to defend her brother. The highest her evidence went was that she left the car and followed her brother in the event that it was necessary to stop any fight or to prevent any repetition of what she believed was the needle stick injury the complainant had earlier inflicted. She submitted, however (and we accept), that s 418(2) does not require an accused to give direct evidence of belief that it was necessary in the particular circumstances to act defensively if there is a basis for that belief from other evidence or as a matter of inference from that evidence. In this case, the appellant relied upon the evidence of Ms Becker, who observed the fight from her car and to a lesser extent the evidence of Mr Milne. 87Ms Becker's evidence was that she came upon the fight towards its end and that the female appeared to be breaking the fight up by pushing the man who was not covered in blood away and standing in between the two men. Ms Becker heard the female say, "Stop". Ms Becker's evidence was thus limited by reason of her arriving after the fight. Although she saw the man with blood on him, she did not see the infliction of the wound that caused the bleeding. The weight of Mr Milne's account of the incident was undermined by the fact that he saw two females involved in the fight, which was squarely contradicted by the CCTV footage and that the man without a shirt (the complainant) was kicking the man on the ground, again contradicted by the CCTV footage. 88One thing that was clear on the CCTV footage was that the complainant was not the protagonist. The protagonist was the appellant's brother who is seen chasing the complainant, pushing him, grappling with him, punching him, pulling his jumper off and kicking him. That was also consistent with the evidence of the complainant. The appellant's brother's evidence, although describing a more limited involvement, is only consistent with his being the aggressor. 89The appellant's evidence was that she was trying to break up the fight. The appellant did not contend that her evidence was sufficient to establish the requisite belief in s 418(2) that "the conduct" (in this case the use of a knife were the jury to conclude that she was so armed) was necessary to defend her brother, or that there was any basis elsewhere in the evidence for her to have formed the belief that the complainant was or might be armed with a syringe when she involved herself in the fight initiated by her brother. In our opinion, Ms Becker's evidence fell well short of addressing those deficiencies in the evidence. Not only did she only see the end of the fight, hearing the female call out "stop" is entirely consistent with the appellant calling out to her brother to stop kicking the complainant, because having realised that she had stabbed the complainant, she also realised it was essential that they leave. 90Further, there was simply no evidence that would satisfy the second limb of s 418 . 91A case of self defence involves an acceptance or admission that the accused person inflicted a wound or engaged in an assault or that the jury might reason to that conclusion. As previously said, the appellant's complaint that self defence should have been left to the jury bears the same tactical difficulties that confronted counsel in Douglas. A case of self defence was contrary to her case that she did not have a knife or implement that could have caused the wound and that she did not stab the complainant. Therefore, if the appellant wished to contend, as she now does, that she acted in defence of her brother, she had to: (a) advance a case to the jury that using the knife in the manner depicted in the CCTV footage and wounding the complainant was in self defence; (b) satisfy the trial judge that the evidence raised a question of self defence even if not positively advanced by her; or (c) satisfy this Court that there was a miscarriage of justice because self-defence was otherwise raised by the evidence, obliging the trial judge to direct the jury in accordance with ss 418 and 419 and that the failure to do so has deprived her of a fairly open chance of an acquittal . 92In our view, even if the jury accepted the reasonable possibility on all of the evidence that the appellant believed it was necessary to use a knife or implement to stab the complainant in defence of her brother (about which we remain unpersuaded, given the paucity of evidence at the trial to justify the defence being left and the express basis upon which we would refuse leave under r 4 to argue the first ground of appeal) the defence would inevitably fail in any event, there being no reasonable view of the evidence, viewed objectively that the appellant's conduct was a reasonable response to any threat to which her brother might have been subject in the circumstances as she perceived them. On the best view of the evidence, the complainant had a syringe in the first fight, but that was some half an hour or so earlier. We can conceive of no submission (and none was advanced) that the use of a knife or implement to inflict a deep penetrating wound to the chest, was a reasonable response to the possibility that the complainant might still have had a syringe in his possession, or a reasonable response to her brother being attacked by the complainant during the second fight, again a factual circumstance not borne out by the evidence and, indeed, positively contradicted by the CCTV footage . 93Had the appellant sought a direction on self defence at trial, we are satisfied the trial judge would and should have refused it. For that reason, leave under r 4 is refused to raise ground 1 of the appeal.
Ground 2: failure by the trial judge to explain the legal consequences of an accidental wounding 94The appellant argued that there had been a miscarriage of justice because of the failure on the part of trial counsel to ask for directions that the complainant suffered an accidental wounding at the scene of the accident. The appellant submitted that an hypothesis was available that accident was a reasonable explanation for the injury and that her Honour should have so directed the jury that they would need to be satisfied, in those circumstances, that the wound was occasioned as a result of the appellant's intentional act before they could convict the appellant. Leave to argue this point on appeal is also required as it was not raised in the court below: Criminal Appeal Rules, r 4. 95The appellant submitted that the following matters supported a case of accidental wounding: on the appellant's evidence she had no animus towards the complainant and by intervening in the fight she was simply trying to break it up, an account which, she contended, was consistent with the eyewitness evidence; the fight was "fast moving, uncontrolled and uncontrollable"; she exhibited no violence towards the complainant by way of touching or kicking him; on the expert evidence it was not established that the injury was necessarily caused by a knife that was deliberately utilised; Dr Ashour was unable to comment on the force required to inflict the wound that the complainant suffered; and the CCTV footage was equally consistent with the injury being the result of a deliberate act as it was with an unintentional act, for example, of the complainant being pushed in the altercation onto the knife or other implement that the appellant was holding. 96The appellant also contended that, on a viewing of the CCTV footage, the Crown could not negative accidental wounding. The appellant at times also advanced arguments that the complainant could have fallen onto a piece of glass or a broken bottle. In this regard, the appellant relied upon the complainant's acceptance in cross-examination that he had told the woman in the brothel that he thought he had tripped over. However, this does not fully reflect the complainant's evidence which is set out at [30], and Ms Laming denied he had said that he had fallen over. This argument was not confined to the possibility that he might have tripped over after he moved away from the altercation. A submission was made that he could haven fallen on glass during the course of the altercation, although it should be noted that the complainant was not questioned as to whether he had been accidentally stabbed or had fallen onto a sharp object at the scene. However, the appellant's primary position was that the possibility of the injury having occurred accidentally was demonstrated on the CCTV footage. As we understand her final submissions, the appellant accepted that the possibility of the complainant having been wounded by falling onto glass was somewhat speculative. 97The appellant relied upon the following evidence of Dr Ashour, who she contended, could not discount the possibility of accidental penetration by some implement or object other than a knife. In particular, she submitted that Dr Ashour's evidence did not establish that the wound was the result of a deliberate stabbing. Dr Ashour's evidence was as follows: "Q. On the statement or the report that you have prepared do you agree that you've got a question mark, can you see where you've got provisional diagnosis? A. Yes. Q. You've got there question mark stab wound? A. Yes. Q. With right side of pneumothorax? A. Yes. Q. Is there any particular significance about the question mark, or why did you put it there? A. It is more likely possibility of stab, I didn't see a knife or something, I was - you just rely on information given. It is more likely given the information given and the clinical - the wound inspection expiration that looked clean cut, sort of small like a short object, just reason to make you think it is more likely a stab wound. Q. A knife is certainly a sharp sort of implement that could have caused the wound that you observed, that's accurate to say, a sharp knife? A. Yes knife or any other sharp object. Q. Would that include a piece of broken glass or would that generate some sort of jagged edge? A. I can't really know, but it's a possibility, I'm unable to tell you exactly, it is not my area of expertise." 98The appellant also relied on the CCTV footage. Counsel for the appellant contended that if the Court considered that she was depicted holding something in her hand, then it was also possible, from a viewing of frames 10 and 11, that at that point the complainant was in the arms of her brother, who, she contended, was at that point pushing the complainant forward. The import of the submission was that in the course of those movements, the complainant fell (or might have fallen) onto or moved into the appellant's outstretched arm and came into contact with the knife in her hand. The appellant also relied upon the evidence of Ms Becker that she was not behaving aggressively but rather seemed to be trying to place herself between the two men. The appellant submitted that this was analogous to the fourth factor considered to be relevant by McHugh J in Stevens. 99In Stevens, the appellant's appeal from his conviction for murder was allowed because the trial judge had refused to give a direction to the jury as to accidental death. The deceased had been the friend and business partner of the appellant. The appellant gave evidence that as he was trying to take a rifle away from the deceased who was about to shoot himself, the shot that killed him was discharged. In a recorded telephone call to an ambulance service shortly after the shooting, the appellant said that he was "going to call it an accident for the moment": see [21]. 100McHugh J, at [24], stated that if the jury rejected the appellant's account, it was open to the jury to conclude that the appellant had killed the deceased. However, that did not mean that the appellant had to be convicted of murder. His Honour considered that there were four other pieces of independent evidence that entitled them to return a verdict of not guilty. Those four matters would have enabled the jury to conclude that accident was a reasonable explanation of the whole of the evidence. The fourth of those matters was the friendly relationship between the two men, the factor upon which the appellant relied in this case as being analogous to her case that she had no animus towards the appellant. 101McHugh J after identifying those matters, observed, at [25] : "As I have indicated, the prosecution case was a circumstantial evidence case. Such a case requires a direction to 'the jury that, if there is any reasonable hypothesis consistent with the innocence of the [accused], it is their duty to acquit.' In determining whether a reasonable hypothesis exists, the accused is not required to establish by inference that he or she is innocent. In Barca v The Queen, Gibbs, Stephen and Mason JJ said: 'However, although a jury cannot be asked to engage in groundless speculation it is not incumbent on the defence either to establish that some inference other than that of guilt should reasonably be drawn from the evidence or to prove particular facts that would tend to support such an inference. If the jury think that the evidence as a whole is susceptible of a reasonable explanation other than that the accused committed evidence that entitled the jury to return a verdict of not guilty of the crime charged the accused is entitled to be acquitted.'" (citations omitted) 102His Honour continued, at [30]: "... Juries cannot take into account fantastic or far-fetched possibilities. But they 'themselves set the standard of what is reasonable in the circumstances.' ... In the present case, the jury might reasonably conclude that the Crown had not proved to the requisite standard that the death was not caused by accident. That conclusion may have been based on no more than a judgment that, given the relationship of the two men, the expert evidence concerning the rifle and the telephone call, they were not satisfied that it was not death by accident" (citations omitted). 103Callinan J, at [158], noted that "accident" (as used in the Criminal Code (Qld)) bore its "natural, sometimes graphic connotations of an unhappy, unintended, and unexpected adverse event". 104The Crown submitted that this case was distinguishable from Stevens in three respects. First, it was factually dissimilar from Stevens. In Stevens, a question had arisen on the evidence as to whether the gun had accidentally discharged. Secondly, in order for a jury direction to be required in respect of accidental wounding, some other event has to be identified as the cause, or a possible cause, of the wounding. In this case, no clear alternative event was identified. Thirdly, in this case, r 4 applied, whereas in Stevens, a request for a direction had been made. 105The Crown also submitted that the trial judge had appropriately dealt with any alternative possibility, in that she had clearly directed the jury that the Crown had to prove beyond reasonable doubt that the appellant had a knife and that she stabbed the complainant in the chest with it. The direction to which the Crown referred was as follows: "The Crown, with respect to count one, must first of all prove that [the appellant] wounded [the complainant] ... You then would consider whether there was an intention on the part of [the appellant] to cause grievous bodily harm ... ... Intent and intention are familiar words. They carry their ordinary meaning in the law. How do you prove someone's intention unless they tell you what it is? Well here the Crown seeks to prove the intention of [the appellant], being inferred or deduced from the circumstances in which the injury or the wounding occurred ... The Crown, quite rightly, is entitled to rely on the actions of [the appellant], if you find those to be the actions of [the appellant], in the circumstances, to suggest that you could only infer that the person intended to cause very serious injury ... ... Perhaps I could illustrate it in another way. If one person clobbers another person on the head with a hammer, you might think that the obvious and inevitable outcome is that the person being clobbered is going to receive a very serious bodily injury. If the hitting of the other person on the head with the hammer was deliberate, as opposed to an accidental act, then the ready conclusion is the person intentionally inflicted serious bodily injury on the other person. You might think that there is no real difficulty at all, about coming to that conclusion." (emphasis added) 106Her Honour also clearly directed the jury that the Crown had to prove that the appellant's brother did not stab the complainant. 107Her Honour correctly directed the jury in respect of a circumstantial case that: "If there is some other conclusion which is reasonably open, that there is another reasonable explanation which is inconsistent with guilt, it is your duty to find the accused not guilty." 108The Crown submitted that it was clear on this direction that the jury was told of the need for them to be satisfied that the appellant's state of mind accompanying the act was one of intent, as distinct from the injury being caused accidentally. Although the trial judge did not refer to either of the accidental mechanisms postulated by the appellant on the appeal she was not asked to since neither were raised by trial counsel. 109In our opinion, the submission advanced on the appeal that the injury could have been sustained accidentally involves the type of speculation in which juries are not permitted to engage. The possibility of the complainant having been pushed on to a knife or sharp implement that the appellant was holding, which would have required the jury to reject her sworn evidence that she did not have a knife or sharp implement, is, on the facts, merely speculative. This case is not like Stevens where there was independent evidence that allowed for the possibility of accident. The possibility of such an accident as was argued here bears no relationship to the evidence. It is not consistent with the CCTV footage. Rather, the CCTV footage shows the appellant lunging forward with an outstretched arm. It is not consistent with the appellant's evidence or that of her brother. If the wounding happened in the vicinity of 621 Hunter Street at police marker D, the only two persons who could have been holding the knife were the appellant or her brother. Each denied having a knife. Accidental wounding is not supported by Ms Becker's evidence who says nothing on this topic. The only evidence which is neutrally available is that of Dr Ashour. That is not evidence of accidental wounding. Some other reasonable explanation for the wound would have to be postulated. 110The possibility of falling on glass was not an hypothesis that arose on the evidence. Notwithstanding that a crime scene was established within a relatively proximate time to the wounding, there was no evidence of any glass having been found. The police officers were not questioned about the presence of glass. The appellant herself recognised that the wounding by broken glass was perhaps "speculative". 111But in any event, the Court is of the opinion that the trial judge's directions to the jury were sufficient to instruct the jury of the requirement that they had to be satisfied beyond reasonable doubt that it was appellant who had stabbed the complainant and that she had done so with the intent to cause him grievous bodily harm. This, as the directions made clear, required the jury to be satisfied that the wounding was not accidental. The hypotheses upon which the appellant relied were not advanced at trial. It was not appropriate for her Honour to suggest alternate hypotheses as to how the wounding occurred. 112The fact that no issue of accidental wounding was raised at trial, may itself have been a matter of a considered forensic decision. It was not suggested that trial counsel had been incompetent. The appellant submitted, however, that regardless of whether a forensic decision had been made not to raise the point, having regard to the evidence and, in particular, what was shown on the CCTV footage, it was incumbent upon the trial judge to give a direction: see Carney at [64]. For the above reasons we reject that submission. 113The Court would not grant leave to raise ground 2. This ground, like ground 1, has involved an attempt by the appellant to place postulations before the Court that were not issues in the trial, do not have a basis in the evidence and amount to no more than an attempt to run a different case on appeal.
Ground 3: a miscarriage of justice has been occasioned by the trial judge's evidential analysis in the summing up of that there was "nothing to suggest" that the acts that were said to constitute the affray were lawful 114The appellant was charged, by count 3 on the indictment, of using unlawful violence towards the complainant such that a person of reasonable firmness if present at the scene would have feared for their safety (the affray offence). 115The trial judge gave the following directions in respect of that count: "As to the third count, the count of affray, the Crown must prove the following elements beyond reasonable doubt. Again that it occurred on the date and place. That [the appellant] used or threatened unlawful violence towards [the complainant]. Violence, in law, means violent conduct towards a person and is not restricted to conduct causing or intending to cause injury or damage but includes any other conduct such as throwing punches or kicking out towards a person, as examples, even if those punches and kicks fall short of actually making contact. [The appellant] must be shown to intend to use or threaten violence and be aware that her conduct may be violent or appear to threaten violence. The prosecution must also prove that those violent acts were unlawful. Again there is nothing to suggest that those acts, if that is what you find them to be, were lawful." (emphasis added) 116Her Honour then referred to the CCTV footage and continued "On the other hand, the defence in relation to this charge, is that [the appellant] was not at all actually involved in using or threatening violence towards [the complainant]. She was there in order to actually break up what was happening to [the complainant] at the hands of her brother, Jason Wilson." 117The following day, her Honour gave further directions to the jury in respect of the affray: "The Crown must prove that [the appellant] used or threatened unlawful violence towards the complainant. Violence means violent conduct towards a person, is not restricted to conduct causing or intending to cause injury or damage but includes anything like throwing punches, kicks that do not land, that type of thing, that can amount to violent conduct for the purpose of proving, the Crown proving this element. It must also be unlawful. And here I do not think that there is any suggestion that if that is what was happening then it was unlawful behaviour. People cannot - it is against the law to run around kicking and punching other people, to put it most simply." 118The appellant contended that the portion of this direction emphasised in bold (set out at [115]), was factually incorrect. She argued that there was evidence that she had gone to the defence of her brother and in the coincident pursuit of the lawful arrest of the person who had earlier assaulted her brother. 119There are two responses to the contention that the direction was factually incorrect. First, her Honour did not say that there was nothing to suggest that the appellant's actions were lawful. Her Honour was directing the jury that if they considered that the appellant was depicted in the video kicking and throwing punches, even if they "did not land", then such actions were not lawful. Her Honour also clearly put the defence case that the appellant was not involved in using violence towards the complainant. 120However, the appellant contended that her Honour, in respect of this count, should have directed the jury in respect of self defence and on a citizen's right to arrest. This submission goes to the second response. 121An issue had been raised during the course of the trial as to self defence relating to this count. Trial counsel made an application for a direction in relation to self defence. The Crown submitted that there was no evidentiary basis for that direction. The Crown also submitted that, in any event, if the jury accepted the appellant's evidence that she was trying to break up the fight, she was not guilty of the offence of affray and for that reason, there was no issue of self-defence. The Crown Prosecutor said that it was the Crown case that the appellant was not trying to break up the altercation between her brother and the complainant. Rather, she joined in the attack. As the Crown Prosecutor pointed out, the appellant "went around her brother, approached [the complainant], came in contact with [the complainant], joining in the attack". 122Her Honour summed up on the charge of affray. Trial counsel then withdrew her request for a direction in respect of self defence relating to the affray. On the appeal, the appellant contended that counsel was mistaken to have done so in that she had relied upon an incorrect statement of the law by the Crown referred to above. 123The Court is of the opinion that the case of self defence in respect of the charge of affray did not arise on the evidence. Further, as the Crown submitted on the appeal, confirming the position of the Crown at trial, a direction of self-defence was not only not required, but such a direction could have been confusing to the jury. If the jury accepted that she had gone into break up the fight and did not herself use violence, she would not have been guilty of the charge. 124Trial counsel had taken a considered position in relation to seeking the direction. She first indicated that whilst the direction was sought, she was not sure that it "gets across the line", meaning, as the Court understands it, that counsel was unsure as to whether self-defence was available, such as to require a direction. Then, after having heard the directions given by her Honour in relation to the affray, trial counsel expressly withdrew the request for the direction. There is and could be no complaint about her Honour's direction. 125As already indicated, there has been no suggestion of incompetence on the part of counsel. In those circumstances, the decision to withdraw the request of a direction should be viewed as one where counsel recognised that the position of the appellant may have been jeopardised if a direction was given. Rather, the defence was better left as one of the appellant not having engaged in violent conduct such as to be not guilty of the affray. 126Insofar as the appellant contended on the appeal that the jury was entitled to a direction as to a civilian's right of arrest, pursuant to the Law Enforcement (Powers and Responsibilities) Act 2002, s 100(1)(b), the Crown submitted, correctly in the Court's opinion, that there was no evidence that the appellant was intending to arrest the complainant. Indeed, the appellant's proposition is entirely inconsistent with her own evidence summarised at [62] and [66]. 127Leave is refused to raise ground 3 of the appeal.
Ground 4: the verdict is unsafe and unsatisfactory 128The Criminal Appeal Act 1912, s 6(1) provides that the Court of Criminal Appeal: "... shall allow the appeal if it is of opinion that 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 ..." 129The task of the Court of Criminal Appeal pursuant to s 6(1), is, as stated in M v The Queen [1994] HCA 63; 181 CLR 487 at 493, by Mason CJ, Deane, Dawson and Toohey JJ: "Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty" (citation omitted). 130In MFA v The Queen [2002] HCA 53; 213 CLR 606, McHugh, Gummow and Kirby JJ stated, at [58], that the reference to "unsafe and unsatisfactory" in M was the equivalent of the statutory test in s 6(1) of the Criminal Appeal Act of "unreasonable" or such as "cannot be supported, having regard to the evidence". 131Their Honours noted that for the purposes of s 6(1), the starting point was that the jury had the primary function in determining the guilt or innocence of the accused. It was integral to that proposition that the jury had seen and heard the witnesses. However, as had been stated in M by the majority, at 494: "In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred." 132Earlier in M, at 492, their Honours had said: "In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, 'none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand" (citations omitted). 133In SKA v The Queen [2011] HCA 13; 243 CLR 400 French CJ, Gummow and Kiefel JJ reiterated, at [14], that: "In determining an appeal pursuant to s 6(1) of the Criminal Appeal Act, by applying the test set down in M and restated in MFA, the Court is to make 'an independent assessment of the evidence, both as to its sufficiency and its quality'" (citations omitted). 134Their Honours then referred to the passage in M set out above. 135The appellant submitted that it was indispensable, in the circumstances of this case, for the Court to be satisfied that the CCTV images relied upon by the Crown established the infliction of the wounding. She contended that the poor quality of the footage was such that the jury was required to draw a conclusion, by inference, that the appellant had wounded the complainant in the absence of any expert evidence that a knife was used to inflict the wound. 136The Crown contended that this submission misstated or misunderstood the Crown case. The Crown case, which was left to the jury by the trial judge, relied on either direct and circumstantial evidence, or alternatively, was one that depended entirely upon circumstantial evidence. This had been a matter of discussion between the trial judge and the Crown Prosecutor after the appellant's counsel had sought a circumstantial evidence direction. This discussion revolved around what could be seen on the CCTV footage. 137In the end result, her Honour left the matter to the jury on the alternate bases that the CCTV footage was either direct evidence that the appellant was the person who stabbed the complainant or, if the jury was not satisfied of that from the footage, the Crown case was a circumstantial one. There is no complaint on the appeal that her Honour erred in leaving the matter to the jury on the alternate bases. 138There were certain aspects of the CCTV footage that were not in dispute, namely, that the appellant and her brother were shown in the footage and that the other man, who is seen with his jumper being pulled off, was the complainant. However, the video images were of poor quality and the jury were given directions in relation to that. 139The trial judge gave directions concerning circumstantial evidence and summarised that evidence. This included no blood being present between the zero point and marker D, the presence of a large amount of blood at marker D, a blood trail leading to where the complainant collapsed at 9 Steel Street, the CCTV footage, the absence of damage or blood on the shirt, Jason Wilson's denial that he had stabbed the complainant and medical evidence of the wound. 140There is no complaint on the appeal as to these directions. The issue under consideration in this ground of appeal, as we have stated previously, is whether the verdict is unreasonable. As indicated, in her oral submissions on the appeal, the appellant's focus in respect of this ground was upon what could be seen in the CCTV footage. There are also "stills" of the relevant portions of the footage, although of poorer quality than the CCTV footage itself. The Court reviewed this footage on several occasions during the course of oral submissions. The Court has reviewed the CCTV footage again for the purpose of preparing these reasons. 141The following observations made by her Honour, Fullerton J, in the course of viewing the still images, provide a convenient summary of what may be seen on the CCTV footage: "... the appellant enters from the dark shaded shadow area to the left of the photograph with her right shoulder and her left arm behind her. The next photograph has her entering the fully lit footpath, this time her right arm is forward and her left shoulder dropped. Is it said by the Crown that the weapon is what is held in her right hand in that photograph, and that the next photograph namely photograph 9 if that's its numbering, shows the thrusting of the weapon into the chest of the victim? Am I right in thinking that photograph 8, again if that be the number, is the clearest still upon which the Crown relies to show that there was a weapon in the appellant's hand?" 142The appellant's counsel responded: "Yes, I think 9 is the photograph upon which the Crown rely to support that proposition." 143Photograph 9 depicted a "darker horizontal type shape between the appellant and [the complainant]", a description provided by the appellant's counsel. It was that depiction which the Crown contended was the weapon. However, the appellant drew attention to what she contended was shown in the footage, of: "... conspicuous parallel lines that dot along this footpath, shadowed parallel lines that appear to be perfectly parallel again with that piece of shading which [was] said on the Crown case to be a knife ..." 144As the Court understands the submission, the parallel lines were the depiction of joints or cracks on the footpath, but could mistakenly be taken as a shadow of an object being held by the appellant. There are shortcomings in this submission. The most fundamental is that a careful viewing of the footage at still 9 shows the appellant holding an object in her right hand. This is quite independent of there being any shadowing of an implement on the footpath. But in any event, it was not obvious to the Court on viewing the footage in court and subsequently that there were parallel lines on the footpath, as the appellant contended. 145The appellant next submitted that the most that the evidence established as to the wound was that it was a penetrative injury. She submitted that Dr Ashour was not in a position to give any evidence as to what caused the injury, that is, whether it was due to a stabbing injury or was inflicted by some other mechanism. The possibilities advanced by the appellant included that the complainant stabbed himself, or fell on some glass or other sharp object, or, as was advanced in respect of ground 2, that he fell, or was pushed onto the knife. However, it was not suggested to the complainant in cross-examination that he had stabbed himself or fallen onto glass or was pushed causing him to fall onto the knife. Likewise, no questions were asked of the appellant's brother and the appellant's evidence did not suggest this possibility. 146The Crown submitted that the evidence established that the wounding could only have occurred in the course of the altercation near 621 Hunter Street in the vicinity of police marker D and that there were only two possibilities as to who stabbed the complainant: the appellant or her brother. The Crown submitted that the only person who was doing any "stabbing motions" as portrayed in the CCTV footage was the appellant. 147The appellant's brother said in his evidence in chief that he did not stab the complainant. This evidence was not challenged by the appellant in cross-examination. Notwithstanding the absence of challenge to her brother's evidence, the appellant submitted to this Court that even if the Court considered that there was some consistency between what was shown on the footage as potentially giving rise to the injury, there was the same consistency in the appellant's brother's conduct as potentially having caused the injury. The appellant submitted that there was no rational basis upon which the Court could favour the conclusion that it was her who had inflicted the injury rather than her brother, or that the complainant had otherwise injured himself by falling on a sharp object. 148The principles that govern this Court's task in determining whether a guilty verdict is unreasonable are set out above. In the Court's opinion, on viewing the CCTV footage, the appellant is depicted in frame 9 as holding an implement in her right hand. In the next frame she is seen lunging in front of her brother at the point where the complainant was being pulled by her brother. 149The complainant's evidence has been set out in summary above. However, the following evidence is of particular importance in relation to what happened during the course of the altercation. He said that having run a few hundred metres up the road he "ran out of puff". He turned around and heard a woman's voice "screaming, swearing, yelling". He was still on his feet. He then described what happened: "Q. And what do you remember of that, this being beaten up? A. I just remember hits coming from left, right and centre. There was too many to deal with. Q. What happened then? A. I remember I knew I was in trouble. Q. No do not tell us what you knew, just tell us what happened okay? A. I just remember getting hit all over the place. Q. Did you stay on your feet? A. I think I might have, I don't know. I might have dropped on the ground. Q. So you do not know, is that right? A. I can remember being winded and I thought, I'm seriously hurt. I can remember the wind getting taken out of me. Q. What do you mean by that? A. I just remember getting winded, like no energy. Q. Can you describe being winded with no energy any better than that? A. It was all over for, like I couldn't defend myself any more. Q. What happened next? A. I took off running." 150The evidence of being "winded", as if having "no energy", is consistent with the complainant being stabbed and, as a result, suffering a pneumothorax. 151The CCTV footage also shows the complainant's jumper being pulled off him by the appellant's brother in the course of the altercation. The evidence of the trail of blood commencing from the place of the altercation, the finding of his shirt and jumper at that point and the absence of blood on, or any rips in, his shirt and jumper is only consistent with his having been stabbed during the course of the second fight in the vicinity of police marker D. The forensic evidence proved that the blood trailing from the site of the second fight at police marker D to the brothel in Steel Street was that of the complainant. 152The Court is not satisfied, for the reasons given, that there was a reasonably possible case of accidental wounding or a case of the appellant defending her brother. There is no doubt on the evidence that the only two people who could have inflicted the injury was the appellant or her brother. The Court does not accept that on the video footage it was equally possible that the appellant's brother inflicted the wound. The video footage shows the appellant with an implement in her hand and lunging forward in a swift and energetic thrusting motion. Having made an independent assessment of the evidence, the Court is satisfied "upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt" that the appellant deliberately inflicted the wound sustained by the complainant: see M at 493. 153Ground 4 of the appeal is rejected. The question of whether the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence as one of fact: see M at 492-493. Leave is therefore required: Criminal Appeal Act, s 5(1)(b). We would grant leave but reject the ground.
Conclusion 154The appeal must be dismissed. Before pronouncing final orders, it is necessary to return to a matter mentioned at the outset. The sentences imposed upon the appellant are set out at [2] above. The fixed term imposed for the offence of affray expired on 21 February 2013. The non-parole period for the offence of wounding with intent to cause grievous bodily harm was due to expire on 21 April 2013. However, appeals-bail was granted on 25 February 2013. The appellant was, at that time, still to serve 1 month and 27 days of the non-parole period fixed by the sentencing judge with 21 months and 27 days of the total term of imprisonment to run. 155Under the Criminal Appeal Act, s 18(2) the time during which an appellant is at liberty on bail pending the determination of her or his appeal does not count as part of any term of imprisonment imposed upon her or him. Section 28A of the Criminal Appeal Act empowers the Court to "make any order that it thinks fit to give effect to section 18". Accordingly, it is appropriate for this Court to make orders for the re-commencement of the non-parole period and additional term passed on the appellant by the sentencing judge. 156The total sentence imposed was one of 2 years and 6 months, that is, less than 3 years. In such a case, the Crimes (Sentencing Procedure) Act 1999, s 50 requires a court to "make an order directing the release of the offender on parole at the end of the non-parole period", usually referred to as a parole order. It has come to the Court's attention that the learned sentencing judge did not pronounce a parole order, probably because the requirements of s 50 were not drawn to her Honour's attention by counsel during the proceedings on sentence. In our view, in making orders in accordance with the Criminal Appeal Act, s 28A, it is appropriate for us to remedy this oversight, and our orders will include a parole order directing the appellant's release, at the expiration of the non-parole period, to supervision as prescribed by the regulations under the Crimes (Administration of Sentences) Act 1999 for the duration of her parole period. 157The Court's orders are: (1) Leave granted to advance ground 4; (2) Appeal dismissed; (3) Under the Criminal Appeal Act 1912, s 28A, the sentence imposed on the appellant in the District Court of New South Wales on 28 June 2012 for the offence of wounding with intent to cause grievous bodily harm is to re-commence today, Friday 20 December 2013. The non-parole period will expire after 1 month and 27 days on 15 February 2014. The additional term expires on 14 October 2015; (4) The appellant is to be released on parole on 16 February 2014 subject to the supervision prescribed by the regulations under the Crimes (Administration of Sentences) Act 1999 during the balance of her term of imprisonment.
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