31 It is convenient to deal first with the ground of appeal, asserted by both appellants, that challenges the reasonableness of the verdicts of guilty under s 35. In each case, the submissions advanced are the same: essentially, the argument was that, the jury having not been satisfied beyond reasonable doubt of the elements of the primary charge, it could not reasonably have been satisfied beyond reasonable doubt of the elements of the alternative.
32 S 33 is relevantly in the following terms:
"Whosoever
maliciously by any means wounds or inflicts grievous bodily harm upon any person, …
with intent in any such case to do grievous bodily harm to any person, …
shall be liable to imprisonment for twenty-five years. "
33 S 35, the statutory alternative, is relevantly in the following terms:
"Whosoever maliciously by any means:
(a) …;
(b) inflicts grievous bodily harm upon any person,
shall be liable to imprisonment for seven years."
34 The sole distinction between the two offences is the presence (in s 33) and the absence (in s 35) of the element of intention to cause grievous bodily harm.
35 One complicating factor, in considering the way in which the argument was put, is that the Crown case against the appellants invoked the doctrine of joint criminal enterprise. It will be necessary to consider this circumstance below. The force of the argument can best be assessed by the examination of two categories of evidence. The first category is the evidence of eye witnesses to the attack on Constable Carty. The attack itself, including both phases, occupied a very short time and was over in a few minutes. The second relevant category of evidence is medical evidence detailing the injuries Constable Carty sustained.
36 In relation to the charges under s 33 the Crown presented its case on two alternative bases. Firstly, it asserted that each appellant, by his own acts, committed the offence of maliciously inflicting grievous bodily harm with intent to do so. Alternatively, it asserted that each appellant participated with others in an attack upon Constable Carty, and was liable for the injuries he suffered in accordance with the principles of joint criminal enterprise.
37 In order to succeed on the primary basis, it was necessary for the Crown to establish, inter alia, that the appellants (or either of them) had the necessary intent. In order to succeed on the alternative basis, it was necessary for the Crown to prove that the appellants were (or either of them was) present at the scene with the person or persons who committed the acts alleged to constitute the crime; were (or was) there by reason of a pre-concert or agreement with that person or those persons; and that the acts of the other participants constituting the crime were within the contemplation of the appellants, or within the scope of the agreement: see Osland v R [1998] HCA 75; 197 CLR 316, per McHugh J at [72].
38 The further alternative, expressly provided for by s 34 of the Crimes Act, was the s 35 offence of maliciously inflicting grievous bodily harm, but without the element of express intent. It was, in fact, on this alternative that both appellants were convicted. It is a perceived anomaly in these verdicts, when regard is had to the evidence adduced, that gives rise to the principal ground of appeal. The argument advanced on behalf of the appellants was that, in the light of the evidence to which I have referred, a jury could not reasonably have accepted beyond reasonable doubt that the appellants were guilty, in either of the postulated ways, (ie as principals or accessories) of the malicious infliction of grievous bodily harm without that infliction being accompanied by the necessary intention or contemplation. In other words, rejection of the Crown case on the issue of specific intent carried the necessary corollary of rejection of the Crown case as to the physical acts attributable to the appellants.
39 Put shortly, the argument advanced on behalf of the appellants was that, having regard to the evidence adduced on behalf of the Crown, it was not open to the jury to be satisfied of all elements except that of the relevant intention. That is because, once the jury was satisfied beyond reasonable doubt that the appellants were responsible for the physical acts that constituted the offence (under s 35), those acts could not be seen as having been done other than with an intention to do grievous bodily harm. The guilty verdicts must, on this argument, have been irrational.
40 The argument was, in effect a variation, or an adaptation of the reasoning of the High court in R v Jones (1997) 191 CLR 439; that, if the jury had a reasonable doubt about the intention of the appellants (and it obviously did) then that doubt must (or ought) to have extended, or been translated, to the evidence of the physical acts attributed by the Crown to the appellants.
41 In support of their argument, the appellants referred to the manner in which the Crown was said to have argued its case, describing this as "almost apologetic". Counsel for the appellants relied upon a passage in the summing-up in which his Honour referred to the argument of the Crown put in support of the alternative charge in the following terms:
"The Crown put its case in respect of the alternative as follows:
'Somebody might think "well we will hurt him a bit" but he is actually caused grievous bodily harm. Then that person, if you were really satisfied he wanted to hurt him but not to hurt him really seriously, would be guilty of the offence of maliciously inflicting grievous bodily harm.'
And the Crown submitted to you that it can be reached by either of the two alternative routes:
'Either you do it yourself or, alternatively, you were there as part of an agreement to do it, ready to assist, encourage and the like, but you were not actually kicking or throwing a punch or anything like that, but that you are ready to help if need be; one of those things.'
The Crown submitted to you that the charge only has to be considered in respect of each accused if you do not convict that accused of the more serious charge of maliciously inflict grievous bodily harm with intent to cause grievous bodily harm, remembering that that offence which I have just mentioned, in the case of Mr Esho, is an alternative to the charge of murder.
The Crown submitted to you that it has, at the very least, made out the alternative of maliciously inflict grievous bodily harm for the reasons advanced in its argument and it submits that in respect of each of the accused, at the very least, if you are not satisfied in the case of Mr Esho of the offence of murder, and in the case of Mr Esho that he had maliciously inflicted grievous bodily harm with intent to cause grievous bodily harm, and in the case of all the four others that they were guilty of that offence of maliciously inflict grievous bodily harm with intent to cause grievous bodily harm, at the very least the Crown has proved the alternative of maliciously inflicting grievous bodily harm."
42 I detect nothing "apologetic" or "almost apologetic" in the way in which the trial judge summarised the Crown case on the s 35 alternative. It seems that the submission arises from the relative brevity of the passage in a lengthy summing-up. From that, it was submitted , it could be seen that the s 35 alternative "did not loom large in the trial proceedings". The submission is not, in my opinion, supported by reference to the transcript of the final address of the Crown Prosecutor. Although his remarks to the jury were also succinct, they are sufficiently comprehensive and certainly not "apologetic".
43 The circumstances are not dissimilar to those that arose in McKenzie v R (1996) 190 CLR 348. There the appellant was charged with two counts of committing perjury intending to procure the acquittal of his client who was on trial for a serious offence. Alternative charges of perjury, but without the specific element of intention to procure the desired result, were left to the jury. In each case the jury acquitted on the primary charges and convicted on the alternatives. The only distinction between the primary and alternative charges was the element of intention (to procure a specific result). On appeal to this court, an argument was advanced that ran directly parallel with the argument here put on behalf of the appellants: that is, that the rejection of the Crown case on intent (inherent in the acquittal on the primary charge) necessarily entailed rejection of the Crown case on the alternative charges. In that case, that was because (so it was said) it was impossible to envisage a reason for committing the alleged perjury other than to secure an acquittal. This court rejected the argument, referring to the particular circumstances of the case and holding that:
"It was not inherently unreasonable for the jury to find against the appellant under [the lesser charge] but at least to give him the benefit of the doubt under [the primary charge]." ( R v MacKenzie (1995) 82 A Crim R 473, per Gleeson CJ Mahoney JA and Studdert J)
44 In the High Court the argument was repeated and was treated as an argument about "inconsistency": the majority (Gaudron, Gummow and Kirby JJ) paraphrased that as meaning "repugnant", or "illogical".
45 Their Honours set out a number of applicable principles, of which the fifth was:
"Nevertheless, a residue of cases will remain where the different verdicts returned by the jury represent, on the public record, an affront to logic and common sense which is unacceptable and strongly suggests a compromise of the performance of the jury's duties. More commonly, it may suggest confusion in the minds of the jury or a misunderstanding of their function, uncertainty about the legal differentiation between the offences or lack of clarity in the judicial instruction on the applicable law. It is only where the inconsistency rises to the point that the appellate court considers that intervention is necessarily required to prevent a possible injustice that the relevant conviction will be set aside. It is impossible to state hard and fast rules. 'It all depends upon the facts of the case.'" (internal references omitted)
46 It is to the mast constituted by "an affront to logic and common sense" that the appellants must attach their argument. But I am unable to accept that the verdicts in this case were an affront to logic and common sense. In McKenzie the High Court examined a variety of potential explanations for the differentiation in the verdicts which the jury returned in that case. They held that the verdicts did not come within any category that would have resulted in the entry of verdicts of acquittal. In this case, a similar exercise produces a similar result. The evidence was lengthy. The trial ran over approximately four months. A large number of witnesses gave evidence. Some of them proved either unfavourable to the Crown, or gave evidence inconsistent with previous statements they had made, resulting in the Crown being granted leave to cross-examine. On any analysis of the evidence, the events that resulted in the death of Constable Carty took place over a very short time, but were intense, extremely violent, and confused. The most rational explanation for the verdicts is that all members of the jury were satisfied beyond reasonable doubt that each appellant had engaged in the conduct attributed to him, or had participated in such a way as to make him criminally liable, but, having regard to the speed and ferocity of the melee, did not find themselves satisfied that either appellant had formed the necessary specific intent, or (in relation to the joint enterprise aspect) had the necessary contemplation of intent in others to injure.
47 In McKenzie, the High Court considered as significant a direction given by the judge that it was open to the jury to find the appellant not guilty of the more serious charges but guilty of the less. So it is in the present case. The very fact that the alternative was left to the jury (without protest from either appellant's legal representative), demonstrates that the alternative was, at the time of the trial, perceived as available. It is expressly made so by statute. However, no submission was made at the trial (unsurprisingly) that the statutory alternative did not represent a real alternative on the facts of the case. This was quintessentially a tactical move on the part of the appellants' legal advisers. It would have taken a courageous counsel to urge upon the jury that only conviction on the more serious offence was rationally possible on the evidence. Further, the High Court in McKenzie referred to the directions concerning the heavy onus which lies on the Crown to prove every element in the offence charged, including, in that case, intention. So it is in the present case. The jury having been given a similar direction, it was open to it to reject the Crown case on specific intent, but accept its case on the actus reus.
48 Although the High Court upheld the McKenzie appeal on another ground, it rejected the ground based on asserted "inconsistency". I would take the same course in the present case.
49 Senior counsel for Sako approached the same point from a different direction. In this instance he placed reliance upon the word "maliciously" as it appears in both s 33 and s 35. In order for the appellants to be convicted under either section it was necessary for the Crown to prove that they acted maliciously.
50 In s 5 of the Crimes Act 1900 "maliciously" is defined as follows:
"Every act done of malice, whether against an individual or any corporate body or number of individuals, or done without malice but with indifference to human life or suffering, or with intent to injure some person or persons, or corporate body, in property or otherwise, and in any such case without lawful cause or excuse, or done recklessly or wantonly, shall be taken to have been done maliciously, within the meaning of this Act, and of every indictment and charge where malice is by law an ingredient in the crime."
51 Senior counsel cited R v Smith [1982] 1 NSWLR 1 and R v Safwan (1986) 8 NSWLR 97 as authority for the proposition that, in the case of an offence under s 33, the requirement of malice "adds nothing and is effectively superfluous". I do not accept that these cases stand as authority for that proposition. Smith involved a charge of maliciously attempting to discharge a loaded firearm with intent to do grievous bodily harm, a charge which also falls within s 33 of the Crimes Act. This court (Street CJ, Reynolds JA and Maxwell J) rejected an argument that directions given to the jury on the ingredient of "maliciously", together with directions on the requisite specific intent, were confusing. The court declined to follow English authority (R v Mowatt [1968] 1 QB 421; (1967) 51 Cr App R 402) because of differences in the statutory terminology under consideration. Later, in Safwan, Street CJ rejected a further proposition to similar effect but noted that there may be some overlap between directions on intent and those on "maliciously". In such cases, his Honour considered, there was no reason why a brief direction to that effect should not be given. He did not, however, describe the requirement of malice as "superfluous", and nor did he conclude that no direction on the meaning of "maliciously" should be given.
52 However, the argument proceeded. Senior counsel asserted that, on an analysis of the jury verdict of acquittal on the s 33 charge, it could only be concluded that, either the jury were not satisfied that the appellant did the acts charged against him; or, if they were satisfied that he did those acts, they were not satisfied that he did so with the necessary intent. If the former, then obviously he could not be convicted under s 35; if the latter, the jury could not properly have been satisfied of the element of "maliciously".
53 As I perceive this argument, it depends upon a false premise. The false premise is that "maliciously" precisely equates with "with intent to cause grievous bodily harm". A cursory reading of s 5 disposes of the false premise, and the argument based upon it. In order to prove malice it is sufficient for the Crown to prove indifference to human life or suffering, or intent to injure (which might fall short of grievous bodily harm), or recklessness or wantonness. I would reject these grounds of appeal.