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[2017] VSCA 307
Court of Appeal (Vic)
2017-10-26
Mr J, Maxwell P, Redlich JA
Original judgment source is linked above.
[2017] VCC 288 (Judge Tinney)
CRIMINAL LAW - Appeal - Conviction - Fresh evidence - Evidence of pre-trial conversation with eyewitness - Whether doubt cast on evidence given by eyewitness - Whether significant possibility of acquittal - Leave to appeal refused.
CRIMINAL LAW - Appeal - Sentence - Reckless cause injury - Convicted after trial - Sentenced to nine months' imprisonment with 15 month community correction order - Whether manifestly excessive - Whether judge erred in taking into account serious injury caused - Leave to appeal refused.
1 On 8 March 2017, the applicant was found guilty by a jury of one charge of recklessly causing injury. There were two charges on the indictment, namely, intentionally cause serious injury (charge 1) and recklessly cause serious injury (charge 2). The jury acquitted the applicant of the charged offences and the lesser alternative to charge 1 (intentionally cause injury) and convicted him of the lesser alternative to charge 2.
2 The maximum penalty for recklessly cause injury is five years' imprisonment.[1] On 21 March 2017, the judge sentenced the applicant to nine months' imprisonment, together with a community correction order ('CCO') for 15 months, with conditions attached.
3 On 20 April 2017, the applicant filed notices of application for leave to appeal against both conviction and sentence. On 4 May 2017, he also filed an application for bail pending appeal, in view of the short duration of the period of imprisonment. On 12 May 2017, the Court heard initial arguments on the application for bail and then adjourned the hearing on the basis that there would be an expedited hearing of the substantive applications.
4 The substantive applications came on for hearing on 25 May 2017. As will appear, the sole ground relied on in support of the conviction application concerned what was said to be fresh evidence, as set out in an affidavit from a person who had not given evidence at the trial. In the course of the hearing, the Court indicated that it would be necessary to hear viva voce evidence from the proposed additional witness.
5 On 2 June 2017, the witness gave evidence and was cross-examined. Supplementary submissions were then filed, directed at the effect of his evidence, and on 19 June 2017 the Court announced that - by at least a majority - each of the applications would be refused. We indicated that we would publish our reasons subsequently. These are those reasons.
6 The circumstances of the offending were conveniently summarised by the sentencing judge, as follows:
Your victim in this matter was a man by the name of Patrick Ryan. He had been at the 40th birthday party of his friend, a man named Mark Riley at Riley's house out in Upper Beaconsfield on the night of 23 May 2015. You were invited to the party by Riley's brother. About 40 or so people attended. Prior to the night you and Ryan had never met. You met at the party. At one point not too far removed from the events the subject of the assault, the two of you had in some way been talking. You told Ryan not to talk to you. He has no memory of the words he had uttered to provoke your response. In any event he turned away from you and had nothing further to do with you. You suggested in your interview that he was being a bit of a loudmouth and had alleged that you were racist. Maybe he did.
In any event, what is plain is that there was no open hostility or anything even suggesting that it would erupt into violence much less the nature of your violent attack upon Ryan. He had consumed a fair amount of alcohol, that much is plain. You had consumed about ten cans of mixed drink. The party had well and truly run its course and there were only a handful of guests sitting around the fire. You were seated next to Ryan. Without warning, you leapt or jumped up from your seated position and without in any way announcing or even flagging your intentions, you smashed the glass you were holding in your left hand into the right side of this man's face in a round armed blow. He did not see the blow coming. He had no awareness at all of any impending attack. It was quite startling conduct and your attack was observed by three of those seated around the fire. Mr Ryan fell to the ground and you then got on top of him and wrestled with him until you were pulled off by others.[2]
7 It was not disputed that the victim sustained serious injuries. He suffered deep lacerations; the frontal branch of the facial nerve was completely severed; and there was complete laceration of the artery and vein around the right ear. He required plastic surgery under general anaesthetic. He was left with residual scarring, some loss of sensation and a heightened sense of pain at the site.[3]
8 The sole ground of appeal against conviction was as follows:
Since the trial, fresh evidence has become available which demonstrates that a substantial miscarriage of justice has occurred.
The fresh evidence was said to cast doubt on the 'credibility of evidence given by witness Mark Riley'.
9 The applicant relied for this purpose on an affidavit sworn 18 April 2017 by Michael Riley ('Michael'), the brother of Mark Riley ('Mark'). In that affidavit, Michael stated that:
10 The critical part of Michael's affidavit was in these terms:
On or about 2:30am-3:00am, an incident occurred in the front yard of my brother's home. I was not present at this scene and did not see what happened.
On or about the 26 or 27 May 2015, Mark and myself both flew out to Bali on separate flights, staying at different resorts for several weeks. I stayed at the Jayakata Apartments in Legian and met up with Mark throughout this holiday.
Approximately one week into our holiday, we met up at the Cocoon Club for a mutual friend's 40th birthday called Toby Vojkovic. Toby now resides in Bali with his family. During the evening for Toby's birthday, I had a brief conversation about the incident with Mark regarding what he saw. Mark said that he did not see the incident until they were both on the ground. However, he was going to say what he needed to, to help his friend Paddy out.
I am now aware that Bryce has since been found guilty of recklessly cause injury and is serving time in gaol.
For the period Bryce was on trial, and before, I did not come forward to provide evidence about what my brother had told me in Bali.
I was worried and concerned about my family finding out about Mark's and my own consumption of cocaine. As a result, I was hesitant in coming forward with these facts and I did not want to come forward with what I knew as I also did not want to cause a rift of friction between Mark and myself.
I am now willing to provide evidence to rectify this situation.[4]
11 According to the applicant's written case, if Michael's evidence had been available at the trial, Mark would have been cross-examined 'as to both his credibility and reliability'. It was said that Mark had been 'the only witness at the trial who gave evidence that he observed the applicant strike the complainant with a glass to the face'.
12 As already mentioned, the Court informed counsel for the applicant that, in order to assess the weight to be attached to what was said to be fresh evidence, the Court would need to see Michael give evidence and be cross-examined. Under cross-examination Michael was asked about the circumstances of the 'brief conversation' during the trip to Bali. He confirmed that the conversation had lasted no more than 15 to 20 seconds; he had not challenged his brother about what he said; and he had not asked for more detail.
13 It emerged that it was he (Michael) who had raised the issue, by asking his brother what he had seen. Asked to explain what had prompted the enquiry, Michael said that he 'wanted to know if [Mark] seen it or not'. He further explained that
everyone was saying ... what [the applicant] had done. I wanted to know if my brother had actually seen it for himself.
Michael also said that he had heard from his cousin that, she had been talking to Mark at the relevant time, such that he could not have been a witness to the assault.
14 Michael further stated that he had spoken with the applicant during or after the trial. When the applicant told Michael what evidence Mark had given, he said to the applicant that he believed that it was incorrect.
15 In supplementary submissions, counsel for the applicant contended that Michael's evidence was 'capable of belief, and likely to be believed, by a reasonable jury'.[5] On his sworn evidence, Michael was told by Mark that:
[T]he import of his fresh evidence is clear. He is aware that the evidence he has given demonstrates that his brother may have committed perjury.
The fresh evidence possesses the cogency to be likely to influence a jury away from a verdict of guilty.
...
When the fresh evidence, if believed by a jury, is taken with the evidence given at trial in that sense most favourable to the Applicant which a reasonable jury might properly accept, it is likely that a verdict of guilty would not have been returned.[6]
17 The respondent's submission was that Michael's evidence did not give rise to a 'significant possibility' that the jury would have acquitted the applicant. The respondent pointed out that, in his oral evidence, Michael gave this version of Mark's response to his question: 'I saw him on the ground and I'll say whatever I have to to help him out.' In cross-examination, Michael confirmed that Mark had said nothing to him about what he might, or might not, have seen before the victim went to the ground. On the basis of this version, it was submitted, the account purportedly given by Mark to Michael in the conversation was 'not inconsistent with' his evidence at the trial.
18 In our view, this ground falls to be determined principally by reference to the state of the other evidence before the jury, which the Crown summarised as follows:
She saw 'Bryce jump out of his - or off his stool, a little stool that he was sitting on, and hit' Patrick;
She saw Bryce lunge at Paddy and she thought he punched him;
Bryce had been holding a glass;
She did not see the glass make contact with the side of Paddy's face.
Bryce attacked Paddy;
Bryce struck him with the empty glass on the head;
Paddy was just sitting there in the moments before he was attacked;
He heard the glass pop on Paddy's head;
Paddy fell backwards on his chair, Bryce then proceeded to mount Paddy and try and attack him further;
Heard the pop sound immediately after Bryce lunged out of his chair.[7]
19 The evidence which Mark Riley gave was quite specific, namely, that:
20 Taken at its highest, Michael's evidence attributes to Mark a statement that he was prepared to make false statements if it would help his friend, Patrick Ryan, who had suffered injury. What cannot, of course, be assessed with any confidence is how Mark would have responded if questioned, before the jury, about that conversation in Bali. It is, of course, improbable that he would have admitted that the evidence he had given was knowingly false. Indeed, he may well have disputed Michael's recollection of their conversation. Those uncertainties make it almost impossible to evaluate the extent to which the leading of Michael's evidence would have resulted in doubt being cast on Mark's account.
21 But even assuming that the effect of Michael's evidence, and Mark's responses under cross-examination, were to cast doubt on the accuracy of Mark's recollection, we see no reason to think that this would have created any significant possibility of acquittal. As we have pointed out, there was clear evidence from the victim himself about where, and when, he had felt the impact of being struck, and from two eyewitnesses about having seen the applicant attack the victim. None of those witnesses was in any material way shaken under cross-examination and, in our view, their evidence made the applicant's conviction almost inevitable.
22 For these reasons, we concluded that leave to appeal against conviction must be refused.
23 The application for leave to appeal against sentence relied on two grounds. The first contended that the sentence was manifestly excessive. The second contended that the judge 'erred in taking into account the serious injury caused to the victim'. We deal with the specific error ground first.
24 This ground draws attention to the following parts of the sentencing reasons:
One of the reasons that glassing is so serious is the nature of the mechanism and its high level of dangerousness. The level of foreseeability of injury is relevant to the consideration of the gravity of a crime. True it is you did not foresee serious injury. Serious injury is a very high bar since amendments were made a few years ago in the Crimes Act. A high bar in terms of it occurring and of proof of intent or foresight of that consequence. Injury is a far broader category than once was the position and incorporates things that previously would likely have been classed as serious injury including for instance disfigurement.
You foresaw injury but in circumstances where injury covers
a range of not insignificant consequences. You foresaw injury flowing from the mechanism you employed. A glass to the face of a man. You foresaw injury to the face of this man though not life threatening or substantial and protracted. Hence you did not foresee serious injury. Yours was however a very serious example of this offence in my view. It will be rare indeed for a glassing to be dealt with as a recklessly causing injury though I suppose there are some that will not reach that high level of seriousness of injury and others where there may be some doubt entertained as to the specified state of mind as in this case.
...
I must pay regard to the gravity of the offence before the court. As I say, your counsel correctly concedes that it is a most serious example of the crime of recklessly causing injury. She is right. It is. A weapon was used. A glass. The strike of that weapon was totally uncalled for and totally unannounced. It was struck to the side of the face of the totally vulnerable and unprepared victim. It happened to cause serious injuries though you foresaw injury only but of a kind consistent with the mechanism. It is true that it was a spontaneous event but the same can be said of most acts of glassing. The Court of Appeal in Winch spoke of the recurring features of glassing cases. Usually being an act of alcohol fuelled aggression in disproportionate response to an actual or perceived slight with typically a young offender of good character and full [of] remorse.
The consequences of glassing are almost invariably serious. The Court in Winch spoke of the heightened need for general deterrence as a sentencing objective. Again I don't lose sight of the differences in that case dealing as it did with recklessly cause serious injury. So the 'obviousness' of serious injury being caused does not apply to your act. Of course, you did not foresee serious injury. Still these general principles are of some weight in this case. The mechanism, the area of the body struck, the face, the totally unannounced nature of the attack, the impact, all make this a serious example of the crime. You do not have available any of the sizeable utilitarian benefits of a guilty plea or the presence of remorse for the crime. They do not exist here.[8]
fell to be sentenced for the injury that he recklessly caused. He was not to be sentenced for the serious injury that was, in fact, caused.
His Honour improperly used the victim impact statement as a basis for imposing a more severe sentence than that which would otherwise have been imposed.
26 We were not persuaded by that submission. Axiomatically, the applicant could only be sentenced for the offence of which he had been convicted, that is, recklessly causing injury. The effect of the jury's verdict was that the applicant had been found to have foreseen a probability of injury, rather than serious injury, and had elected to proceed notwithstanding that probability. It was that state of mind - recklessness with respect to injury - which defined the (relative) gravity of this offence, and the applicant's culpability. Had he been found guilty of recklessly causing serious injury - that is, of having foreseen the probability of serious injury - both the gravity of the offence and his culpability would have been greater.
27 It does not, however, follow that the victim impact - which the judge was bound to take into account[9] - was somehow artificially confined to something less than the injuries actually suffered. Under s 3 of the Sentencing Act 1991, the word 'victim' in relation to an offence means:
a person who ... has suffered injury, loss or damage ... as a direct result of the offence, whether or not that injury, loss or damage was reasonably foreseeable by the offender.[10]
28 Incontrovertibly, the serious injury which the victim in this case suffered was 'a direct result' of the offence which the applicant committed. The sentencing judge was bound to take into account the full impact of the offending on the victim. What his Honour had to avoid was sentencing the applicant as if he had been convicted of the more serious offence of recklessly causing serious injury. As is apparent from the extracts of the reasons set out above, his Honour was astute to avoid any such error.
29 The submission for the applicant was that it would be 'difficult to find many cases with stronger mitigating features'. Reliance was placed on the following matters:
30 It was submitted that a CCO could have satisfied all of the purposes of punishment, including general deterrence. It was said that the principle of parsimony 'required this result'.
31 We concluded that this submission must be rejected. In our respectful view, the sentence which his Honour imposed was well within the range available for this serious offence. His Honour's application of the principle of parsimony was exemplary. He said:
I accept that a community corrections order can provide substantial, general and specific deterrent effect and that such an order can be very punitive as a disposition.
Section 5(4C) of the Sentencing Act prohibits the imposition of a sentence of confinement unless the court concludes that the purposes of sentence cannot be achieved by a community corrections order to which specified conditions are attached. Accordingly a court needs to pay careful attention to the purposes for which sentence is to be imposed and whether they can actually be achieved by a stand-alone community corrections order. There are some crimes that are just too serious.
The Court of Appeal suggested in Boulton that judges ask the following question:
Given that a community corrections order could be imposed for a period of years with conditions attached which would be both punitive and rehabilitative, is there any feature of the offence or the offender which requires the conclusion that imprisonment with all its disadvantages is the only option?
I have no doubt that I must answer that question in the positive. Your crime is such that I do not believe it is open to release you on a stand-alone community corrections order. Your offending demands that you serve a sizeable term of imprisonment. I do not believe that a community corrections order on its own can adequately reflect all the relevant sentencing purposes. General deterrence, denunciation and punishment are significant purposes here given the nature of your crime.
It is my view that there is no alternative other than to impose a term of imprisonment upon you. The issue then for me is whether I pass the appropriate individual sentence and then fix a non-parole period or impose a term of imprisonment in conjunction with a community corrections order and provide for your certain release by admitting you to a suitably conditioned community corrections order to take effect upon your release. That later method provides a guaranteed release mechanism for you. My concern has been whether it is open to me to use such a combined order given the need to have you serve a sizeable period in custody. I only have at my disposal an upper ceiling of 364 days. Ultimately I believe it is open to impose a combined sentence in this case.
You and those around you can work with confidence as to your release date. That certainty will be very important for you and your family. For your father. For your girls. A non-parole period provides no guarantee at all and I would need to act on the basis that you would serve every day of the sentences pronounced. I believe that it is open to admit you to a suitable community corrections order to take effect upon your release from prison and in this way to provide for your continued punishment and rehabilitation
upon your release in a less punitive and damaging setting. In an environment where you can attend to your many obligations, family and work commitments.
Sending a person to prison is always a matter of last resort. Your counsel suggests there is an alternative here. I simply don't agree. Your crime is just too serious.[11]
32 This analysis is, with respect, comprehensive and compelling. It demonstrates why the sentence which his Honour imposed was well open to him in the circumstances of the case.
33 For these reasons, we concluded that leave to appeal against sentence must be refused.
34 I have had the considerable advantage of reading in draft the joint reasons of Maxwell P and Redlich JA. However, I have reached different conclusions from their Honours and would have made different orders.
35 In particular, I would have granted the application for leave to appeal against conviction, allowed the appeal, set aside the conviction and sentence, and directed a retrial on the charge of recklessly causing injury.
36 Alternatively, I would have granted the application for leave to appeal against sentence, allowed the appeal, set aside the sentence and re-sentenced the applicant to a community correction order ('CCO').
37 My reasons follow. Since mine is a minority view and since orders have been made refusing both applications, I think it appropriate that I attempt to state my reasons more briefly than otherwise.
38 I differ from Maxwell P and Redlich JA as to the potential impact of the evidence of Michael Anthony Riley ('Michael'). In short, I am satisfied, first, that his evidence is 'fresh'; second, that it is cogent, plausible and capable of belief; and, third, that, if that evidence had been given at trial, when considered with the evidence before the jury, there is a significant possibility that the jury would have acquitted the applicant. I shall deal with each proposition in turn.
39 We had the benefit of seeing and hearing Michael give sworn evidence. He was cross-examined by experienced counsel for the Director. Members of the Court were able to ask questions as well - and we did.
40 Michael was at the party but was not a witness to the events alleged. There was some suggestion in Michael's viva voce evidence that his account may have been known to the applicant during the trial. In the end, however, I accept counsel's submission that neither the applicant nor his lawyers could have been expected to produce Michael's evidence, acting with reasonable diligence, until after the trial. Thus, the evidence was 'fresh'.[12]
41 We did not have the benefit of hearing from Michael's brother Mark Riley ('Mark') - who, it might be presumed, would deny, fail to remember or perhaps put a different slant on their conversations in Bali. Nevertheless, and allowing for that limitation, I found Michael's evidence compelling. In fact, Michael struck me as an honest man doing his best to right (what he perceived to be) a wrong. His explanation for failing to come forward earlier is plausible. His account of what his brother told him in Bali - to which I shall return shortly - also seems plausible. There is no suggestion that he has any axe to grind. Indeed, while the contrary may be possible, it is hard to believe that a person in Michael's position would come forward and divulge the things he divulged about his brother, with whom he had a good relationship, and about himself, unless they were true.
42 I watched and listened to Michael very closely when he gave evidence. I reviewed the transcript of his evidence with the benefit of submissions from the parties. In short, I believed him. More importantly, on the evidence before this Court, I think it would be well open to a jury to take the same view. Thus, I regard Michael's evidence as plausible and capable of belief.[13]
43 The next question is how Michael's evidence might have impacted at trial. The test to be applied is whether the evidence is such that:
if considered in combination with the evidence already given at the trial, the Court considers that there is 'a significant possibility that the jury, acting reasonably, would have acquitted the applicant of the charge if the new evidence had been before it in the trial'.[14]
44 As Maxwell P and Redlich JA explain, the essence of Michael's account is that, when in Bali, his brother Mark said that he did not see the incident until both men were on the ground, and also that he was going to say what was needed in order to help out Mr Ryan, who was his friend.
45 In viva voce evidence in this Court, Michael said that Mark said, 'I saw [Mr Ryan] on the ground and I'll say whatever I have to [in order] to help him out.' I reject the respondent's submission that to say that he saw Mr Ryan on the ground was not inconsistent with Mark's evidence at trial. In context, Michael's evidence in this Court was no more than a paraphrasing of the account in his affidavit, which was that 'he did not see the incident until they were both on the ground'.[15]
46 Mark's account at trial was to the effect that he saw the applicant, while holding a glass in his left hand, get up and, in a round-arm motion, strike Mr Ryan to the right side of the face with the glass, and that he heard the glass smash on impact. The two men 'went down and then scuffled'; Mr Ryan fell to his right side; they were 'wrestling sort of down on the ground, ... locked in', with the applicant on top of Mr Ryan. Eventually, they were separated by Jordan Goldman. There was also evidence that, prior to her son's involvement, Kathy Goldman had got on top of the men and tried to pull them apart. There was evidence, from Mr Ryan, that he then 'went at [the applicant] a bit [and] threw a punch at him which ... missed'.
47 At trial, it was suggested to Mark in cross-examination that the applicant did not strike Mr Ryan to the face with a glass. The witness maintained his account of what he had seen. It was also suggested that he could not have seen any such thing because, immediately before he saw the two men struggling on the ground, he was focused on what he was being shown to him on a mobile phone by Jaquerine Anderson. He agreed that Ms Anderson 'flashed' her phone towards him and others from a distance at some point, but maintained that he saw and heard the strike by the applicant to Mr Ryan.
48 One of the principal issues at trial was whether the applicant struck Mr Ryan to the face with the glass. As Maxwell P and Redlich JA explain, Mark's account of that event was supported, to a greater or lesser degree, by the evidence of his partner Kathy Goldman, her son Jordan Goldman and Mr Ryan himself. The applicant's version in his police interview was that he did not strike Mr Ryan with a glass, but that he (Mr Ryan) came at him and then they went to the ground. He accepted that he had been holding a glass prior to that incident. It was implicit in the applicant's version that Mr Ryan must have been injured accidentally by broken glass when they scuffled on the ground.
49 It was accepted by all on the plea that, given the way the case was conducted, the jury's guilty verdict implies they were satisfied that the applicant did strike Mr Ryan with the glass to the face. Further, the jury must have rejected the applicant's account to the contrary.
50 Thus, in view of the foregoing, including the fact that three witnesses provided support for Mark's evidence, I can understand how Maxwell P and Redlich JA have concluded there is no reason to think that Michael's evidence, when considered in conjunction with the evidence given at trial, would have created a significant possibility of acquittal. I disagree, however, that the evidence of the other witnesses made the applicant's conviction almost inevitable. Instead, for reasons that follow, I am satisfied that Michael's evidence, when considered with the evidence at trial, would have created a significant possibility of an outright acquittal.
51 First, Mark's evidence was the clearest evidence implicating the applicant. Yet that evidence was not free of difficulty. For example, initially, when asked in evidence-in-chief whether he heard anything at the time Mr Ryan was struck, Mark said, 'No.' When asked a second time, he answered, 'No, not that I could hear.' It was not until he was allowed, over objection, to refer to his police statement that Mark agreed that he had told police that he 'heard the glass smash as it hit [Mr Ryan] and the two of them went to the ground scuffling', and that that was the truth. So far as I can see, Mark gave no adequate explanation for this rather stark inconsistency. In my view, Michael's evidence would have allowed trial counsel to make more of this inconsistency, and is likely to have caused the jury to look askance at Mark's evidence.
52 Secondly, while Ms Anderson did not witness the event which led to Mr Ryan and the applicant being on the ground (but she heard a 'loud smash'), she did see them scuffling. She also gave evidence to the effect that, while she thought that Mark was looking at her mobile phone at the time that 'it' (ie, the incident that caused Mr Ryan and the applicant to go to ground) happened, she now thought it possible that Mark was looking at her phone earlier and that she was the only one looking at her phone at what must have been the relevant time. Again, there is a significant possibility that Michael's evidence would cause the jury to think that Ms Anderson's uncertainty should be resolved in favour of the applicant.
53 Thirdly, because Mark's evidence was the clearest evidence implicating the applicant, to have any doubt cast on that evidence, in the way that Michael's evidence could, had the potential also to undermine the other witnesses who claimed to have witnessed something similar. The forensic reality is that, when there is independent evidence suggesting that the most important prosecution witness has lied, there is a significant possibility that a pall of suspicion would be cast over all of those witnesses who claimed to have witnessed something similar. This is not to say that those witnesses' accounts must be presumed suspect by association. But the forensic reality of some suspicion is all the greater when those witnesses have close relationships, as here. One of those witnesses (Mr Ryan) was Mark's friend. The other two (Kathy and Jordan Goldman) were family members of Mark, at whose premises the party was conducted. As will be seen below, there is also a possibility that some or all of the injuries to Mr Ryan's face were caused while those two witnesses were attempting to separate the two men.
54 Fourthly, the verdicts returned demonstrate that, despite the evidence of Mark, his family and Mr Ryan, the jury had significant doubts about the prosecution case. Ordinarily, one would expect that a jury that accepted that an accused deliberately thrust a glass at another's head/face region, and thereby caused injuries that amounted to serious injury, surely would convict of either intentionally causing serious injury or recklessly causing serious injury. Yet this jury not only acquitted of both serious injury charges, but also of intentionally causing injury, and opted for a finding of guilt on the most minor alternative of recklessly causing injury.
55 A notable feature of the prosecution case was the evidence from forensic physician Dr Jason Schreiber. While he did not examine Mr Ryan, Dr Schreiber was shown medical reports of those who did, as well as photographs of his injuries taken soon after the incident. Amongst other things, Dr Schreiber opined that the absence of detectable bruising and splitting of the skin suggested there was no blow with an object to the face. Rather, there were incisions caused by a sharp object or objects. While, as I shall explain in a moment, other aspects of Dr Schreiber's evidence are part of the likely explanation for the jury's acquittal of the applicant on the more serious charges, I think that there is a significant possibility that Michael's evidence, when considered with at least the foregoing aspect of Dr Schreiber's evidence, would have tipped the balance in favour of an acquittal of recklessly causing injury too.
56 The fifth point is related to the fourth. I noted earlier that all at trial agreed that the jury's guilty verdict implies they were satisfied beyond reasonable doubt that the applicant struck Mr Ryan with the glass to the face. The judge also found that, given the evidence, the way the trial was run and his directions, the verdicts necessarily implied that the jury were satisfied that that strike caused all of the injuries to Mr Ryan's face (but that the applicant lacked the requisite mens rea for the three more serious alternatives). I think that that is one possible explanation for the verdicts,[16] albeit a rather unlikely one. For reasons that follow, however, I think that there are at least two other possible explanations. One is that the verdicts reflected a compromise. Another - which I think is by far the most likely - arises in the following circumstances.
57 Evidence: In my view, it is plain that the evidence left open the reasonable possibility of alternative scenarios, including that Mr Ryan was struck and injured (but not seriously injured) by a blow by the applicant but that the balance of his facial injuries were caused accidentally either when he fell to the ground or when on he was on the ground or both. The evidence supporting that possibility is as follows:
a) First, Dr Schreiber did not think that one blow caused Mr Ryan's injuries. Nor did he think that a glass breaking on a single impact would cause the injuries. Rather, he believed that at least two separate contacts with sharp objects (such as broken glass) were necessary to account for the incised injuries to Mr Ryan's face. He also considered it possible that the incised injuries were caused by coming into contact with broken glass on the ground. When directing the jury, the judge summarized Dr Schreiber's evidence in some detail.
b) Secondly, the eye-witness evidence - and the prosecution case - was that only the one blow was delivered by the applicant to Mr Ryan's face.
c) Thirdly, there was evidence that Mr Ryan then fell to his right side - ie, the same side as the injuries to his face.
d) Fourthly, there was evidence that the applicant and Mr Ryan then scuffled on the ground where pieces of broken glass and blood were discovered afterwards.
58 Conduct of case: Next, the prosecution case was that Mr Ryan's injuries - amounting to serious injury - were caused by the single blow with the glass. While the defence conceded that Mr Ryan's facial injuries amounted to serious injury, the mechanism by which those injuries were caused was disputed. In particular, the defence case was that the injuries must have been caused while both men were on the ground. But, while neither party squarely put an alternative that combined aspects of each case, the jury were directed, in conventional terms, that any of counsel's arguments could be accepted or rejected; that the facts were a matter for them; and that they could accept or reject any witness's evidence in whole or in part.
59 Directions: Finally, despite the judge's view to the contrary, I think that other aspects of the directions left open the possibility that the array of verdicts delivered could be returned if the strike caused injury accompanied by the requisite recklessness (rather than only if the strike caused serious injury but with recklessness as to injury). The steps in my reasoning are these:
a) First, while it is correct to say that the judge directed the jury to the effect that, if they could not exclude the reasonable possibility that the serious injury was caused by Mr Ryan rolling around or falling on glass on the ground, they must acquit, in my view, those directions were given in circumstances where it was unclear whether they were intended to apply to all charges. Further, directions of that type were also given in the context of dealing with intentionally causing serious injury in particular, but no equivalent directions were given when dealing with the injury alternatives.
b) Secondly, the judge also defined both 'injury' and 'serious injury'. While his Honour said that, despite the absence of dispute that Mr Ryan sustained serious injury, he was defining these terms because the jury needed to understand these concepts when making judgments about the state of mind of the applicant, in the same passage, he repeated the direction (given elsewhere) that the 'mechanism is hotly in dispute'.
c) Thirdly, when directing on intentionally causing injury, the judge spoke of the applicant only 'need[ing] to have caused ... injury, rather than serious injury'. The same direction was included by reference when dealing with recklessly causing injury.
60 Now, I hasten to add that it was not argued by the applicant in this Court that a substantial miscarriage of justice arose because of a compromise verdict or because the judge's interpretation of the verdict or his directions to the jury failed adequately to reflect the alternative explanation that the strike did not cause serious injury. Nor is the point of the foregoing analysis to suggest that the verdict is unsafe or that the judge's directions were in error or that the sentence is afflicted with error based on such arguments.
61 Rather, the first point of the analysis is to show that, in light of the evidence of Dr Schreiber, the eye-witness evidence and the judge's directions, it is likely that the verdicts are explained by the jury's acceptance that the applicant struck Mr Ryan's face but that he only caused injury as a result. This is because these factors left open at least a reasonable possibility that the totality of the injuries resulted from at least two actions, such that some of those injuries must have been caused in the scuffle on the grass. The second and consequential point is that, for the purpose of considering the fresh evidence ground, it is but a small step to conclude that any further doubt cast on the prosecution case, such as that resulting from the evidence of Michael, gives rise to a significant possibility that, with Michael's evidence, the applicant would have been acquitted of all charges. And I do take that step and come to that conclusion.
62 For these reasons, I am satisfied that there has been a substantial miscarriage of justice. Accordingly, I would have upheld the sole ground of appeal against conviction, granted the application for leave to appeal, allowed the appeal, set aside the conviction and sentence, and directed a retrial on the charge of recklessly causing injury.
Ground 2: Error in taking into account serious injury caused to Mr Ryan
65 It is clear that, while the judge was careful to say that he was sentencing the applicant for the offence of recklessly causing injury (not recklessly causing serious injury), nevertheless, he also took into account his finding that the applicant's strike caused the serious injury that Mr Ryan suffered to his face and the impact on him as a result of that serious injury. In particular, when considering the victim impact statements, his Honour listed all of the injuries to Mr Ryan's face, including deep lacerations, complete severance of the frontal branch of the facial nerve, complete laceration of the artery and vein around the right ear, and residual scarring, some loss of sensation and a heightened sense of pain at the site, as well as the fact that Mr Ryan required plastic surgery under general anaesthetic.[17] It is clear, as the applicant conceded, that these injuries amounted to serious injury. His Honour indicated that he would never lose sight of the fact that the applicant was to be sentenced for the crime of recklessly causing injury. However, he went on to conclude that Mr Ryan 'has clearly been deeply affected by [the applicant's] criminal act' and to indicate that he would 'take into account the impact of [the applicant's] crime as [he is] obliged to'.[18]
66 While I think that the better view of the jury's verdict is that it means that the applicant's strike caused only injury to Mr Ryan's face and the balance of his injuries were caused when on the ground, that opinion forms no part of my consideration of this ground. The applicant took no such ground of appeal. In those circumstances, I am confined to considering the matter on the basis of the judge's finding - namely, that the strike caused serious injury but the applicant was reckless only as to injury. The applicant's argument is that, even accepting that finding, the judge was in error to have taken into account the serious injury caused and its impact on Mr Ryan in sentencing.
67 In my view, there are at least two reasons why the applicant's submission should be accepted.
68 First, I think it is contrary to principle to take into account the fact that the applicant's behaviour caused serious injury, or the impact of that serious injury on Mr Ryan, when the applicant was acquitted of the two serious injury offences but convicted of only recklessly causing injury. As Gibbs CJ said in The Queen v De Simoni:[19]
the general principle that the sentence imposed on an offender should take account of all the circumstances of the offence is subject to a more fundamental and important principle, that no one should be punished for an offence of which he has not been convicted ... The combined effect of the two principles, so far as it is relevant for present purposes, is that a judge, in imposing sentence, is entitled to consider all the conduct of the accused, including that which would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence.
69 One way to test the proposition is this. Consider an accused charged with manslaughter based on an unlawful and dangerous act and recklessly causing injury in the alternative. Assume there is no dispute that a single blow to the face caused both injury and death, but that the accused disputes the blow was either dangerous[20] or reckless, in the senses required. If the jury acquitted of manslaughter because of a lack of satisfaction of dangerousness but convicted of recklessly causing injury, then, given the principles discussed in De Simoni, I do not think it would be open to the judge to take into account in sentencing either the fact that the accused's behaviour caused death or the impact that the death has had on the deceased or his loved ones. In my view, it would be a strange result if it were otherwise.
70 Similarly, if the applicant in the present case had been charged additionally with negligently causing serious injury,[21] but was acquitted of that offence as well, I do not think it would have been open to take into account either the finding that the applicant's strike resulted in serious injury or the impact of that serious injury on Mr Ryan. Yet, it appears that the judge has done just that - by sentencing as if, in addition to being reckless as to causing injury, but while not being reckless as to serious injury, the applicant nevertheless was negligent as to causing serious injury, and by taking into account the impact of the serious injury upon Mr Ryan.
71 While it may be difficult to do, and even somewhat artificial, principle required that the judge confine himself to taking into account only injury caused by the applicant and its impact on Mr Ryan, not serious injury and its impact.
72 Secondly, it follows that I disagree with Maxwell P and Redlich JA that the judge was bound to take into account the impact on Mr Ryan resulting from the serious injury he sustained.
73 While the judge was bound, by operation of s 5(2)(daa) of the Sentencing Act, to take into account 'the impact of the offence on [the] victim of the offence', and while s 3 of the same Act provides that '"victim", in relation to an offence, means a person who ... has suffered injury, loss or damage (including grief, distress, trauma or other significant adverse effect) as a direct result of the offence, whether or not that injury, loss or damage was reasonably foreseeable by the offender', I do not think it can be said that the impact of the offence of recklessly causing injury includes serious injury or its effects, even if that serious injury might be said to be a direct result of the act which formed part of the actus reus of the offence of which the applicant was convicted.
74 To construe s 5(2)(daa)[22] otherwise would amount to a fundamental qualification to the principles in De Simoni. And I see no warrant for doing so. The reason for the broad definition of 'victim' in s 3 seems to be to ensure that a wider range of persons who suffer in some way as a result of an offence, but might not otherwise be thought to be victims of the offence, are indeed treated as victims for sentencing purposes. There is nothing in either s 5(2)(daa) or the definition of 'victim' in s 3 that suggests that it is either necessary or permissible to take into account in sentencing serious injury or death suffered as a direct result of an offender's behaviour when the offender has been acquitted of offences involving the causation of serious injury or death but has been convicted of an offence involving the causation of injury only.
75 It is for these reasons that I am satisfied that the judge erred in his approach to sentencing the applicant.
77 I turn now to Ground 1. In view of my conclusion on Ground 2, it is unnecessary to deal with this ground. However, I shall make three points.
78 First, in light of my conclusion as to the proper approach to Mr Ryan's injury and the impact of the offence on him, and in view of all other matters relevant to sentence, I am satisfied that, because of the prison component, this particular sentence is manifestly excessive.
79 Secondly, even if I am wrong in my conclusions about Ground 2, for reasons that follow, I would still conclude that this sentence was manifestly excessive.
80 The offence of recklessly causing injury is the least serious of the five injury/serious injury offences. It carries a maximum penalty of only five years' imprisonment. That is only one-third of the maximum penalty of the offence of recklessly causing serious injury, which was the subject of close attention in Winch v The Queen.[23] It is only half of the maximum penalty for negligently causing serious injury and intentionally causing injury. While this particular offence was aggravated by use of a glass as a weapon to strike to a vulnerable area without warning and, on the findings made by the judge, resulted in harm that had a substantial impact on the victim, it was nevertheless an unplanned, spontaneous offence. Further, the applicant foresaw the probability of only injury, not serious injury. While it was a serious assault, it was not nearly as serious as most other glassing offences, as they are almost invariably offences of recklessly causing serious injury or intentionally causing serious injury.
81 The applicant relied on a powerful array of mitigating factors, which the judge accepted. Those factors included the absence of a criminal history or subsequent offending; excellent character and an impressive employment history; a very low risk of reoffending; excellent prospects of rehabilitation; the care of two young daughters; and an increased burden of imprisonment by virtue of his inability to provide for his children, and the impact on his business. In short, the applicant had led a life of hard work from a young age, had contributed to his community and family, and had an otherwise unblemished character.
82 This was a difficult sentencing task. It is plain that the judge agonized over his decision but found that he was compelled to impose a prison sentence. In my view, however, parsimony demanded that the applicant not be imprisoned. There was another alternative to imprisonment that would cater adequately for all sentencing purposes, including general deterrence, denunciation, just punishment and rehabilitation. And that was a CCO.
83 Thirdly, I should have thought that this was a case fit for consideration of the matters raised in s 36(2) of the Sentencing Act. Section 36(2) provides that:
Without limiting when a [CCO] may be imposed, it may be an appropriate sentence where, before the availability of the court to impose a suspended sentence was abolished, the court may have imposed a sentence of imprisonment and then suspended in whole that sentence of imprisonment.
I think this is a case in which many judges would have considered a wholly suspended sentence when that disposition was available. Yet it does not appear that there was any consideration given to this provision either on the plea or in the reasons for sentence. Had his Honour's attention been drawn to s 36(2), he may well have imposed a different sentence.
84 Thus, I would have upheld both grounds of appeal against sentence, granted the application for leave to appeal, allowed the appeal, set aside the sentence and re-sentenced the applicant. Provided the applicant consented, I would have favoured imposing a CCO upon re-sentencing.
[2] DPP v Harrington [2017] VCC 288 ('Reasons') [3]-[4].
[5] Citing Ratten v The Queen (1974) 131 CLR 510, 518-19.
[8] Reasons [52]-[53], [55]-[56] (emphasis added).
[12] As to the requirement that, in order to qualify as 'fresh' evidence, the evidence relied on usually must be such that it could not, with reasonable diligence, have been produced by an accused at trial, see, eg, R v AHK [2001] VSCA 220 ('AHK') at [8] per Winneke P (with whom Brooking JA agreed) and at [67] per O'Bryan AJA, and the cases there cited. On fresh evidence principles generally, see also, eg, Coleman v The Queen [2011] VSCA 301 ('Coleman') at [23]-[24] per Buchanan JA (with whom Tate JA and Sifris AJA agreed) and the cases there cited.
[13] See, eg, AHK [2001] VSCA 220 [8]; Coleman [2011] VSCA 301 [23]-[24].
[14] AHK [2001] VSCA 220 [8] (Winneke P, citing Mason CJ and Deane J in Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392 at 402). See also Coleman [2011] VSCA 301 [23]-[24].
[16] Indeed, the judge's directions left open such a possibility.
[19] (1981) 147 CLR 383 ('De Simoni'), 389. See also R v Newman & Turnbull [1997] 1 VR 146.
[20] The test of dangerousness is made out if a reasonable person in the position of the accused, performing the act the accused performed, would have realized that he was exposing another to an appreciable risk of serious injury (see Wilson v The Queen [1992] HCA 31; (1992) 174 CLR 313).
[21] See Crimes Act 1958 (Vic) s 24 (the offence carries a maximum penalty of 10 years' imprisonment).
[22] See also Sentencing Act, s 5(2)(db).
[23] [2010] VSCA 141; (2010) 27 VR 658 ('Winch').
Harrington
The Queen [2017] VSCA 307
(2010) 27 VR 658
(1974) 131 CLR 510
(1986) 160 CLR 392
(1981) 147 CLR 383
(1992) 174 CLR 313