Criminal Law - Appeal and new trial - Particular grounds of appeal - Misdirection and non-direction - Particular cases - Where appeal allowed - No presumption as to the primacy of either written or oral directions.

The People, v Rodriguez 2000 92 Cal Rptr 2d 236 and R v Burns [2009] SASC 105; (2009) 103 SASR 514, not followed.

Judgment Number: [2011] TASCCA 12

On 13 September 2011 it was ordered that the appeal be allowed, the appellant's conviction be quashed and the appellant be bailed to appear at a later date.

1 At the conclusion of the hearing of this appeal, we allowed it and quashed the appellant's conviction on two counts of wounding. We said that we would publish our reasons later. These are those reasons.

2 The appellant was tried on charges that, contrary to the Criminal Code, s172, he at Mount Nelson on or about 22 January 2010:

(1) unlawfully wounded Stephen Joseph by stabbing him in the back with a knife; and

(2) unlawfully wounded Angela Nicholls by cutting her to the neck and chest with a knife.

3 The case advanced by the prosecution on the trial was that during an altercation outside the property where the complainants, Stephen Joseph and Angela Nicholls resided, the appellant wounded each of them with a knife.

4 It was common ground that on the evening of the day in question, as the appellant and his girlfriend, Emily Robinson, walked past the property where the complainants resided, there was a verbal altercation between Stephen Joseph and the appellant. This resulted in both complainants walking down the steps from their first floor unit to a car park where they confronted the appellant and Ms Robinson. Punches were exchanged between the men, most of which did not connect. However, Mr Joseph was able to punch the appellant to the face, causing him to fall to the ground.

5 The prosecution's case was that upon seeing the appellant struck by Mr Joseph, Ms Robinson smashed a bottle over Mr Joseph's head. This prompted Ms Nicholls to grab a stake and use it to hit Ms Robinson to the head. Contemporaneously with these events, the appellant got to his feet. He approached Mr Joseph who felt what he thought was a light punch to his lower back. He turned to see the appellant holding a knife. Mr Joseph had sustained a clean puncture wound to the lower back. This incident was the basis of the first charge of wounding.

6 It was the prosecution's case that following this incident, the appellant approached Ms Nicholls and, in a sweeping motion with the knife, he inflicted wounds to her neck and breast. This incident was the basis of the second charge of wounding.

7 The appellant's case at trial was that he did not have a knife when the incidents occurred. The jurors, by their verdict, rejected this claim. The other key issue for the jurors was whether the appellant had the requisite mental element at the time that he inflicted each wound.

8 The appellant's mental state at the time of the incidents was squarely raised by evidence that when Mr Joseph punched the appellant in the early stages of the altercation:

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the appellant received at least one punch to the jaw;

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the punch caused him to fall to the ground;

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his eyes rolled up into his head;

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he lost consciousness for five to ten seconds;

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when he stood he was groggy; and

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when interviewed by police he was uncertain that he had received a punch to the face, and was unaware that he had fallen to the ground.

9 As is the common practice, the learned trial judge, Tennent J, prepared a memorandum for the purposes of instructing the jury at the conclusion of the evidence and the addresses of counsel. Under the heading "Wounding" the memorandum included the following paragraph:

"4 In respect of each of the counts on the indictment, the State must prove that

a the accused,

b by a voluntary and intentional act wounded Mr Joseph (count 1) and/or Ms Nicholls (count 2)

c the act (in each case the act is said to be a stabbing with a knife) was done with the intention of wounding Mr Joseph and/or Ms Nicholls or was done recklessly, in that the accused ought to have known when he struck out with a knife that a probable consequence of his act was that Mr Joseph and/or Ms Nicholls would be wounded, and

d when the accused wounded Mr Joseph and/or Ms Nicholls, he was not acting lawfully."

10 Under the heading "Alternative verdict - Assault", the memorandum included the following paragraph:

"4 If you are satisfied the accused struck Mr Joseph and/or Ms Nicholls with a knife but you are not satisfied beyond reasonable doubt that the accused, when he struck each of them with a knife, intended to wound them or that his act of striking with a knife was done in such a reckless manner that he ought to have known he would wound either or both of them, then you should find the accused not guilty of wounding."

11 Whilst the prosecution can establish the requisite mental element on a charge of wounding by proving actual intent or recklessness, the above paragraphs were incorrect insofar as they addressed recklessness on the basis of what the accused "ought to have known". The form of recklessness that provides a pathway to conviction on a charge of wounding is subjective recklessness, which is based on what the accused in fact foresaw, not objective recklessness, which is based on what the accused ought to have foreseen. The mental element of wounding is an "actual intent to wound or subjective recklessness": R v Bennett [1990] Tas R 72, Neasey J at 81, agreed with by Underwood and Crawford JJ (as they then were) at 85 and Vallance v R [1961] HCA 42; (1961) 108 CLR 56. As explained by Zeeman J in Standish v R [1991] TASSC 83 at par[22], (1991) 61 A Crim R 364 at 372:

"The expression 'subjective recklessness' is merely a shorthand way of expressing the requirement that in order to convict the appellant, the jury needed to be satisfied that at the time the appellant performed the relevant act he foresaw the likelihood that a wounding might be caused."

12 R v Bennett (supra) involved a charge of causing grievous bodily harm. As explained in that case at 82 and 83, the mental element of that crime is the same as that for wounding, they being allied in the Code, s172. In that case the Attorney-General contended that the italicized portion of the following passage in the memorandum provided to the jury was erroneous:

"To convict the accused of causing grievous bodily harm, the jury would have to be satisfied beyond reasonable doubt

(b) That at the time he performed that act he intended to cause bodily harm of that kind or he foresaw the likelihood that such harm may be caused."

13 For the Attorney-General it was argued that the direction that should have been given was that if the prosecution could not prove intention, it would be sufficient for it prove that an ordinary person would have foreseen the likelihood that such harm would be caused. In substance it was contended that objective recklessness, rather than subjective recklessness, was the alternative avenue by which the prosecution could establish the requisite mental element That argument was rejected by the Court of Criminal Appeal. It confirmed that subjective recklessness was the alternative means of establishing the requisite mental element.

14 For another example of the appropriate direction in circumstances where the prosecution does not rely on an actual intent to wound see Standish v R (supra) where Zeeman J at par[17] said that consistent with Vallance, before the jury could lawfully convict the appellant of wounding it had to be satisfied beyond reasonable doubt:

"(a) that he, by a voluntary and intentional act, wounded [the complainant];

(b) that at the time he performed that act he foresaw the likelihood that a wounding might be caused;

15 When, at the conclusion of the evidence and addresses, it fell to the learned trial judge to direct the jury, her Honour provided each member of the jury with a memorandum containing the paragraphs set out in pars9 and 10 above. Her Honour went through the memorandum with the jurors and explained to them that they could take it with them into the jury room. In going through the memorandum, her Honour reiterated the error contained in it as to recklessness. Her Honour said that it was sufficient if the act of stabbing "was done recklessly, in that the accused ought to have known that when he struck out with a knife the probable consequence of his act was that Mr Joseph and/or Ms Nicholls would be wounded".

16 After the jury retired to consider its verdict, trial counsel for the appellant informed the learned trial judge that it had occurred to him that the direction given in relation to the mental element of wounding was wrong, as the test was subjective recklessness and it was not an objective test. It was most regrettable that it was not until this late stage in the trial that the error was adverted to. The contents of the memorandum had been settled by her Honour with both counsel four days prior to her summation. Regrettable as this oversight was, it had no bearing on the legitimacy of the need to correct the error. In this regard her Honour was not assisted by the prosecutor. When responding to the point made by trial counsel for the appellant, the prosecutor wrongly submitted that the wording of the memorandum did not make the test for recklessness an objective one. Her Honour told counsel that she was not going to change the memorandum but would speak to the jury about the issue. The jury was recalled. After checking with the jurors that they had brought back into Court sufficient copies of the memorandum for each of them to be able to see one, her Honour said:

"Can I just take you to paragraph 4(c) on the first page. In case there's any doubt as far as you're concerned, there's a reference there to the concept of something being done recklessly. You have to be satisfied that the act ... of stabbing which is alleged was done either ... with the intention of wounding Mr Joseph or Ms Nichols or was done recklessly in that the accused himself knew or foresaw or believed or understood not what you might think he believed or understood ..., not what you might think he might have believed or understood, but that he clearly knew or understood that when he lashed out with a knife the likelihood was that he would wound somebody. So it isn't what you might have thought, for example, the accused should have known. It's what he foresaw when he ... either stabbed out with a knife or slashed out with a knife, depending on whether you're dealing with Mr Joseph or Ms Nichols."

17 Immediately following the above, her Honour inquired of the jurors whether any of them had any questions or queries. None did and the jurors again retired.

18 With respect, we are of the view that the course taken by her Honour was insufficient to overcome the problem created by the incorrect memorandum. The insufficiency flows from her Honour's failure to inform the jurors that the memorandum was wrong insofar as it included statements that recklessness was to be assessed on the basis of what the accused "ought to have known", and her failure to direct them to disregard the incorrect portions in the memorandum. Her Honour told the jury that the concept of something done recklessly involved:

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what "the accused himself knew or foresaw or believed or understood";

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"that he clearly knew or understood that when he lashed out with a knife that the likelihood was that he would wound somebody"; and

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"what he foresaw when he ... either stabbed out with a knife or slashed out with a knife".

19 Her Honour also told the jury that the concept of recklessness did not involve:

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"what you might think he believed or understood"; and

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"what you might have thought, for example, the accused should have known".

20 Her Honour did not however mention the specific words in the memorandum that were incorrect. She failed to say that the concept of recklessness did not involve what the accused "ought to have known". Whilst an informed listener to, or reader of, what her Honour said may readily have inferred that recklessness was not to be assessed on the basis of what the accused ought to have known, this was not necessarily so. This should not have been left to inference, but expressly stated. When the jurors again retired to consider their verdict following her Honour's further directions, the memorandum remained with them. It had not been corrected and they had not been told that it contained an error. In those circumstances there was a miscarriage of justice because of the real risk that a juror or jurors continued to understand that consistent with the memorandum, it was open to find that the appellant had been reckless if he "ought to have known that when he struck out with a knife the probable consequence of his act was that Mr Joseph and/or Ms Nicholls would be wounded",

21 In so concluding we were not influenced by a presumption that has found support in the United States, which is to the following effect. It is generally presumed that the jury was guided by the written instructions. The written version of the jury instructions governs any conflict with oral instructions. Consequently, as long as the court provides accurate written instructions to the jury to use during deliberations, no prejudicial error occurs from deviations in the oral instructions. See The People, v Rodriguez 2000 92 Cal Rptr 2d 236 at 6. Similarly, we did not proceed on the contrary basis that: "Ultimately it is the oral directions of the judge which must prevail"; R v Burns [2009] SASC 105; (2009) 103 SASR 514, Gray and Sulan JJ at par[22], see also Kourakis J at par[74]. In concluding that there had been a miscarriage of justice, we assessed the combined impact of the written and oral directions without according primacy to either the written or the oral directions. Our approach reflects that taken by the Court of Criminal Appeal (NSW) in Nguyen v R [2007] NSWCCA 363; (2007) 180 A Crim R 267 at pars[92] - [115], and that of Kirby J in Heron v R [2003] HCA 17; (2003) 77 ALJR 908 from par[37]. See also King v R [2003] HCA 42; (2003) 215 CLR 150 at par[79].

22 We were not satisfied that the proviso applied, that is, that no substantial miscarriage of justice had occurred, as we were not satisfied that the error in question would, or at least should, have had no significance in the determination of the verdict: Weiss v R [2005] HCA 81; (2005) 224 CLR 300 at par[43]. In this case, once the jurors rejected the appellant's claim that he did not have a knife, it fell to them to determine whether he had the requisite mental element when he wounded each complainant. In each instance a pathway that jurors could have followed in finding the appellant guilty was that of recklessness. That being so it was of fundamental importance that they clearly understood that the requisite recklessness had to be subjective not objective.

23 It is for these reasons that we allowed this appeal, quashed the appellant's conviction and bailed him to reappear to the indictment at a future date. In the circumstances it is not necessary for us to deal with the other grounds of appeal, and as there may be a re-trial, it is probably undesirable that we do so.