R v Ferrari [2002] VSCA 186

5. It appears that at some stage during the altercation the applicant, who was seated in the motor vehicle, the passenger side door of which was open, grabbed the victim by the belt and pulled him backwards across the front seat of the applicant's vehicle. The applicant then rained a number of punches upon the face and head of the victim, causing two significant black eyes to the victim, together with grazes around the top of the head and face. It was only by the intervention of third parties that the altercation ceased and the police were called. In the course of making statements to the police the applicant and his brother sought to attribute blame for the altercation to the victim and suggested that they were doing little more than defending themselves.

8. During the course of the trial the victim's evidence was significantly corroborated by independent witnesses, and the applicant gave no evidence on his own behalf. Ultimately, after a reasonably short retirement, during the course of which the jury had asked for a redirection by her Honour on the question of serious injury, the jury convicted the applicant of the offence which I have described, and also convicted his brother of intentionally inflicting serious injury.

11. Her Honour, after hearing a plea on behalf of the applicant, sentenced him to a term of imprisonment of two years and nine months and fixed a minimum term of one year and eleven moths before he would become eligible for parole. It is relevant to note that she also imposed a term of imprisonment of three years and three months upon the brother and ordered that he serve a non-parole period of two years and three months.

14. The applicant has sought leave to appeal against his conviction on one ground which has been argued, and that is that the verdict of the jury was unsafe and unsatisfactory, in the sense that no jury, properly instructed and acting reasonably, could have found on the evidence that the injury which was inflicted by the applicant was a serious injury. His counsel, Mr Wraith, who has appeared in this Court on the applicant's behalf, submitted that the nature of the injuries, in the form of two black eyes, could not have been "serious" within the meaning of the section of the Crimes Act describing the offence. Mr Wraith submitted that it was clear that the injury inflicted by the brother with the stick, causing the broken leg of the victim, was a serious injury, but that the bruising injuries created by the blows rained upon the victim by the applicant could not properly have been regarded by the jury, in accordance with the directions given to them, as serious injuries. It was put that it was only proper for the jury to have returned against the applicant a verdict of recklessly causing injury, which was the alternative charge to the one of recklessly causing serious injury. Mr Wraith during the course of his submissions helpfully referred us to all of the evidence of the witnesses which effectively described for relevant purposes the blows which were struck by the applicant which caused the injuries to the head and face of the victim.

17. In the course of his helpful submissions Mr Wraith referred us to the definition of "serious injury" which was given in the course of the reasons for decision in R. v. Russell Joseph Welsh and Anthony John Flynn[1]. In respect of the relevant meaning of "serious injury", Crockett, J., who gave the leading judgment, said at p.10:

"The submission was made to the judge at the trial that that evidence [his Honour had recited the evidence in that case] was insufficient to justify the jury's conclusion that the injuries were 'serious'. The judge rejected the submission. It has been repeated before this Court and in my view it must fail. There is no exclusive definition of the word 'serious' in the Act. It was left to the jury to determine as a matter of fact what injury or injuries in combination might properly be categorised as being serious, having regard to the fact that the word 'serious' is an ordinary English word the meaning of which must be taken as well understood by the members of the jury. This accordingly required that it be left to the jury to determine as a fact whether the combination of injuries should have been appropriately treated as 'serious' injuries. There must of course be a stage at which it would be impossible, having regard to the ordinary meaning to be given to the word, for any tribunal of fact to find that an injury proved to have occurred could be classified as serious. If the stage were reached where it could not be so categorised, then of course there would be insufficient evidence for the jury to make a finding of an injury as being serious in such an instance. In that case it would be for the judge to remove the matter from the jury's consideration."

His Honour's reference to the meaning of the word "serious" in the section of the Act with which the applicant was charged was to some extent elaborated on in the same case by Tadgell, J., who said at p.18:

"A determination whether a given injury or series of injuries can be categorised as 'serious injuries' in terms of s.16 of the Crimes Act will no doubt involve a value judgment. That judgment will in turn involve comparison between the injury or injuries in question alleged to be serious and an injury or injuries which would, according to ordinary human experience, be commonly regarded as slight, superficial or trifling and therefore falling short of being 'serious injury'."

23. Mr Wraith submitted that in this case the nature of the injuries inflicted by the applicant upon the victim fell short of warranting the term "serious injury". He made that submission notwithstanding that trial counsel for the applicant had made no such submission to the judge, nor did she ask the judge at trial to remove the issue from the jury. Her Honour gave full and what seem to me to have been fair instructions to the jury as to the meaning of "serious injury". No objection was taken to the charge. The jury, of their own motion, returned, as I have earlier indicated, to ask the judge to redefine for them the meaning of "serious injury". Again her Honour directed the jury as to that matter in what seems to me to have been unexceptionable terms. The attitude taken by the jury towards that matter, I think, renders untenable Mr Wraith's suggestion to this Court that, in determining the question of serious injury against the interests of his client, the jury must have been attributing to him some of the conduct of his brother. In my view the jury was entitled, in accordance with the directions given to them, to find that the injuries inflicted on the victim by the applicant were serious, in accordance with the meaning given to that term by the Court of Criminal Appeal of this State some 14 years ago. Although Mr Wraith asked us to depart from the meaning given by the Court to the term "serious injury", I indicated to him during the course of his submissions that this Court would be disinclined to do so, having regard to the length of time that that definition has continued to obtain.

26. In all the circumstances I would not be prepared to say that the jury in this case was not entitled, on the evidence, to come to the view that the injuries inflicted by the applicant on the victim were serious injuries within the meaning of that term. It seems to me that the jury must be taken to have given full consideration to the issue in the light of the directions given and re-given, and to have concluded, in accordance with proper directions, that the injuries with which they were faced and which had been inflicted by the applicant were indeed a "serious injury" within the meaning of the Act.

29. 9 Accordingly, I would reject the application for leave to appeal against conviction.

32. An application has also been made for leave to appeal against the sentence imposed by her Honour. The basis upon which that application is made is that the sentence imposed by her Honour was manifestly excessive and can be seen to be manifestly excessive because it is manifestly disparate to the sentence imposed upon the applicant's brother, who received only six months more as a head sentence and four months more as a minimum term, the brother having been convicted of the more serious offence of intentionally causing serious injury. However, her Honour was careful, in the course of imposing sentence, to take into account a variety of factors, and indeed it seems to me that she took into account all the factors that should reasonably have been taken into account in imposing the sentence on the applicant. One of the matters that she had to take into account was, of course, the unimpressive criminal history which the applicant had managed to accumulate during his years. It seems to me that in the circumstances it was well open to her to impose the sentence which she did. In my view, it is not open to be said that that sentence is unacceptable having regard to the suggested disparity between it and the sentence imposed upon the brother.

35. In those circumstances I would reject the application for leave to appeal against sentence as well.

39. I agree that the applications for leave to appeal against conviction and sentence should be refused for the reasons given by the learned President.

47. The formal order of the Court is that the applications for leave to appeal against conviction and sentence are refused.

[1] Unreported, Court of Criminal Appeal, 16 October 1987.