Ness v The Queen [2013] VSCA 84

2 The applicant seeks leave to appeal on the following grounds:

1. The learned trial judge erred in leaving to the jury as an alternative to charge 4 (intentionally causing injury) the charge of recklessly causing injury.
2. The verdict of guilty on the alternative charge of recklessly causing injury is unreasonable or cannot be supported having regard to the evidence.

3 The applicant and the complainant formed a sexual relationship in early 2009. The relationship continued until 20 March 2010.

4 On 28 May 2010, the applicant went to the house of the complainant in order to speak to her about their relationship. The complainant went to bed, leaving the applicant in the sitting room, believing that he would let himself out of the house. The complainant later went to the kitchen where she found the applicant with her mobile telephone. The applicant demanded to know the identity of a male person who had been texting the complainant. The applicant rang the number and left a message saying that he was the complainant's boyfriend. The applicant then threw the phone, causing it to break. The complainant tried to ring an emergency number, but the applicant took that phone from her. The applicant locked the front door and the complainant ran into the back yard and hid under a car.

5 The Crown alleged that charges 1, 2 and 3 were constituted by the applicant pulling the complainant from under the car by her legs, which resulted in abrasions to her elbows and legs (charge 3: recklessly causing injury). It was alleged that the applicant then digitally penetrated the complainant's anus and her vagina (charges 1 and 2: rape).

6 The Crown allege that the applicant then forced the complainant's head, face first, into the floor which caused swelling of her nose and an abrasion of her chin. The complainant said:

He just rammed my head into the carpet and it really hurt my nose and chin.

7 The complainant gave evidence that immediately after her face was pushed into the floor, 'the next thing I know I am lying on my back in a different direction, then he stood on me ... He stood really hard on my stomach and it actually caused me to urinate on the floor' (charge 5: assault).

8 Finally, the Crown alleged that the applicant carried the complainant to the bedroom and threw her on to her bed. During the night, she went to another bedroom but the applicant brought her back on two occasions. The applicant left the next morning. It was alleged that by locking the door, taking the complainant's phone, pulling her from underneath the car, taking her inside the house and not allowing her to leave, the applicant falsely imprisoned the complainant (charge 6).

9 The Crown, in this Court, conceded that the first ground of appeal had been established. In my opinion that concession was justified.

10 Towards the end of the prosecution case, the trial judge raised with counsel whether an alternative charge of recklessly causing injury should be left to the jury in respect of charge 4. The prosecutor agreed that it should but made no application to amend the charge or to add the charge recklessly causing injury. The trial judge left the alternative charge to the jury.

11 An accused person may be convicted of a lesser alternative offence other than the offence charged, but only if the elements of the charged offence necessarily include all the elements of the alternative offence.

12 The element of intention and the crime of intentionally causing injury requires proof of foresight of injury either as a probability or as a possibility. On the other hand, the element of recklessness and the crime of recklessly causing injury requires foresight of injury as a probability. Accordingly, it is not every instance of the offence of intentionally causing injury requires all the elements of the offence of recklessly causing injury to be established. The offence of recklessly causing injury cannot be left to the jury as an alternative to intentionally causing injury. If that offence is to be left to a jury, it must be the subject of a discrete charge. So much was decided by this Court in Reid v R.[1]

13 In the present case, the trial judge sought to distinguish Reid v R on the ground that after that decision, the legislature and act of s 239 of the Criminal Procedure Act 2009. The section provided that a jury can find an accused guilty of an alternative offence if the allegations in respect of the original offence included an allegation of the alternative offence. Section 239(1) is in like terms of the now repealed s 421(2) of the Crimes Act 1958 which the Court in Reid v R held precluded leaving recklessly causing injury as an alternative to intentionally causing injury.

14 Counsel for the applicant submitted pursuant to ground 2 that the complainant could have suffered injury by coming into contact with part of the car when she hid under the car and was pulled out from under it or in the course of conduct alleged to constitute other charges.

15 The complainant gave evidence that after penetrating her anus and vagina, the applicant 'had me up on my knees again and he had my hair again. And he just rammed my head into the carpet and really hurt my nose and chin.' The prosecutor limited charge 4 to the allegation that the applicant pushed the complainant's face

into the floor. In her charge, the trial judge instructed the jury that 'the prosecution case is that the accused pushed the complainant's face into the floor.' Both the prosecutor and the trial judge identified other conduct as that relevant to the charges other than intentionally causing injury. In my opinion, in those circumstances it was open to the jury to conclude that the injury to the complainant's nose was the result of the applicant pushing the complainant's face into the floor. In the light of the manner in which the Crown case was conducted and the terms of the judge's charge, it appears that the jury did reach that conclusion.

16 As I consider that ground 2 has been established, I would grant leave to appeal and allow the appeal.

17 Counsel for the appellant submitted that if the appeal were allowed, it would be appropriate to order that the appellant be acquitted. I agree because although the jury found the appellant guilty of recklessly causing injury when it was not entitled to do so, the judge imposed a sentence of an adjourned undertaking for a period of six months and that period has now expired.

[1] [2010] VSCA 234; (2010) 29 VR 446.