Supreme Court of SA|1999-03-25|Before: Duggan JJ, Prior J, Millhouse J

R v GRIFFITHS No. SCCRM-98-260 Judgment No. S70 [1999] SASC 70 (25 March 1999)

Appellant charged with unlawfully and maliciously causing grievous bodily harm with intent to do grievous bodily harm and in the alternative with assault occasioning actual bodily harm. Victim claimed appellant struck single blow to the face with an iron pipe - the appellant admitted striking a single blow to the face with a fist. Appellant was convicted of unlawfully and maliciously causing grievous bodily harm with intent to do grievous bodily harm. On appeal complained that the verdict is unreasonable and cannot be supported in the evidence - the injuries sustained by the victim did not amount to grievous bodily harm - trial judge erred by suggesting to the jury that there could not be any doubt about the victim sustaining grievous bodily harm - trial judge erred in directions on absence of a motive to lie on the part of the victim - trial judge erred in direction that as between prosecution witnesses and the accused someone was telling lies - trial judge failed to direct the jury that statements made by the victim to the police could not be used as truth of the matters there asserted. Held: Appeal allowed - conviction for unlawfully and maliciously causing grievous bodily harm with intent overturned and conviction on the alternative count of assault occasioning bodily harm substituted. The trial judge erred by failing to direct the jury that if they thought the injuries sustained were from a single blow with a fist they would have to closely consider whether they were satisfied beyond reasonable doubt that the appellant had acted with intent to cause grievous bodily harm even if it be the jury's view that grievous bodily harm had in fact resulted. No error on the part of the trial judge in directions on motive to lie, or directions that someone was telling lies, or in the failure to direct as to the use to which the victim's statements to the police could be put. Matter remitted to the trial judge for fresh sentencing.

R v Blevins (1988) 48 SASR 65, applied.
R v Perks (1986) 41 SASR 355, discussed.
DPP v Smith (1961) AC 290;
R v Miller [1951] VicLawRp 49; (1951) VLR 346;
Hyam v The DPP [1974] UKHL 2; (1975) AC 55;
R v Cunningham [1981] UKHL 5; (1982) AC 566;
Bromley v The Queen [1986] HCA 49; (1986) 161 CLR 315;
Sinclair v Dinh (1997) 190 LSJS 53;
Fern (1989) 149 LSJS 229;
R v Palmer (1995) 161 ALR 16;
R v Abraham [1998] SASC 7148; (1998) 70 SASR 575;
R v Calides (1983) 34 SASR 355;
R v Rhodes (1984) 14 A Crim R 124, considered.

On Appeal from DISTRICT COURT (HIS HONOUR JUDGE SULAN)

(Court of Criminal Appeal: Millhouse, Prior and Duggan JJ)

Court of Criminal Appeal: Millhouse, Prior and Duggan J

MILLHOUSE J: I agree with the reasons of Prior J and with the order he proposes.

The appellant was charged on information first with unlawfully and maliciously causing grievous bodily harm with intent to do grievous bodily harm and in the alternative with assault occasioning actual bodily harm. A jury returned a verdict of guilty on the first charge. In this appeal it is said that the verdict is unreasonable and cannot be supported on the evidence because the injuries sustained by the victim did not amount to grievous bodily harm. The appellant says that the trial judge failed to adequately draw medical evidence to the attention of the jury and wrongly suggested that there really could not be any doubt about the victim sustaining grievous bodily harm.

In further grounds of appeal complaint is made about a failure to direct the jury on things put to the jury with respect to a prosecution submission as to the absence of a motive to lie and the failure to direct the jury that it was no part of their task in determination of the proof of the charge to choose between competing versions. The trial judge had said to the jury that in his view as between prosecution witnesses and the accused someone was telling lies.

The appellant did not dispute that on 15 December 1997 he assaulted Paul Blakeney. He denied that he used any weapon in the assault. The prosecution's case was that the appellant struck Blakeney on the side of the face with a piece of metal pipe. Blakeney's evidence was that the appellant produced a piece of iron pipe from inside his trousers and hit him across the right side of the head and face, the force of the blows causing him to lose consciousness briefly. Blakeney said that the appellant told him that he should consider himself lucky that that was all he got and that he should not contact the police or it could be worse for him next time. The appellant maintained that Blakeney had struck him first and that he had retaliated in self defence striking a single blow to Blakeney's face.

The injuries resulting from the assault were treated at the Royal Adelaide Hospital. The Surgical Registrar in the Cranio Facial Unit described the injuries sustained by Mr Blakeney as first observed at the hospital as swelling over the right side of his face with a small laceration under the right eye and a loss of sensation on the right cheek. X-rays and a CT scan disclosed underlying facial fractures on the right side of the face. Those fractures were to the side wall and the floor of Blakeney's right eye socket. There were also fractures through the right cheekbone. Blakeney also complained of a loss of sensation under his right eye, right cheek and right upper gum. He also had blurred vision being unable to focus from his right eye. Surgery was undertaken. The fractures were surgically repaired to keep the bones aligned in position. The Registrar described the bones as quite unstable. The surgery procedure involved making an incision inside the mouth above the right side of the gum where some bones were broken. These bones were aligned into position and held in place with a plate and screws. As for the further fractures around the right side of the eye socket, they were approached through an incision on the outer aspect of the right eyebrow, two pieces of broken bone being aligned together and again plated and screwed. The fracture of the floor of the right eye socket was approached under the right eyeball inside the eyelid. The doctor's evidence was that the bone holding the eye socket in place, the floor, was broken and quite fragmented. It could not be plated and screwed successfully because the bone there was quite thin. A small fragment of bone was taken from the victim's skull and put in place as a bone graft and then that piece of bone itself was plated and screwed in position.

Mr Blakeney was in hospital for some six days. The medical evidence was that the injuries so treated were consistent with Blakeney having been struck with an iron pipe as Blakeney alleged, or with a fist as the appellant admitted.

The Registrar gave evidence that he regarded the injuries as serious, "in that they caused extensive bony fractures". He said they had the propensity to disfigure and cause visual and sensation problems. Nonetheless, the Registrar implied that he did not regard the injuries as particularly life threatening. A radiologist, Dr Taylor, also gave evidence. He had not seen Mr Blakeney. He viewed x-rays of Blakeney's neck and face. He described the injury as consistent with a forceful blow with a blunt type object or a fist. He also said that the injuries could have been caused by one blow and from what he saw, he regarded that as more likely.

In his directions to the jury, the trial judge said that if the jury accepted the medical evidence the jury:

"...may have little difficulty in concluding that the injury sustained by Mr Blakeney was an injury that can be established as serious bodily injury, that is grievous bodily harm, and it follows from that it would also fit the description of actual bodily harm, which, of course, is a lesser type of injury."

It is not disputed that in the passage quoted the trial judge erred in that grievous bodily harm means really serious bodily injury not just serious bodily injury.[1]

The trial judge had directed the jury eight times to that effect elsewhere in his summing up. This slip was thus not significant in itself. It passed unnoticed by the appellant's experienced counsel who took no objection to the directions given. A redirection given at the request of the jury "to clarify the elements of the law of grievous bodily harm with intent to do grievous bodily harm" was in accordance with the decision of this court in R v Blevins[2].

11 The appellant's submission was that the trial judge should have directed the jury that in order to find the first charge proved the jury had to be satisfied that the injury sustained by Blakeney was life threatening. It was also submitted that in saying more than once that the jury may have little difficulty in concluding that the injury sustained was one that could be established as really serious bodily injury, the trial judge had failed to emphasise to the jury that that was a question for it to determine and not one for the trial judge. I reject that submission. Reading the summing up as a whole there can be no doubt that the members of the jury were properly aware of the fact that it was for them to determine whether the injuries they found sustained as a result of an assault by the appellant upon Blakeney caused grievous bodily harm, that harm being intended by the appellant. In Blevins this court said that it is undesirable to define the expression grievous bodily harm to a jury but if it is done, the explanation should be in terms of really serious bodily harm. In that case, King CJ, then dealing with a case involving a conviction for the crime of wounding with intent to do grievous bodily harm, said that any explanation or definition of the expression grievous bodily harm in terms of interference with health or comfort is a misdirection. He cited an earlier decision of this court, R v Perks[3] and spoke of other cases saying that it was desirable that a jury should be directed by using the expression grievous bodily harm and that generally speaking it was unnecessary and even undesirable to offer an explanation of that term. Then came the positive statement:

"If an explanation is thought to be necessary, it should be confined to the expression 'really serious bodily harm'."

Perks was a case involving a conviction for murder in which the direction to the jury as to the intent of the accused was in issue. This court then said that the use of the expression "serious bodily harm" was undesirable and that the trial judge should have used the normal expression of grievous bodily harm. King CJ then observed that there had been a tendency which he had shared to assume without proper consideration that serious was a synonym of grievous. His Honour was sure that he had frequently used the expression serious bodily harm as synonymous with grievous bodily harm. However, having heard the argument on the appeal he reached the conclusion that in some factual situations the expression serious bodily harm may mislead a jury into regarding the degree of harm which must be intended in order to constitute murder as less serious than the law actually requires. His Honour said that, like White J, he considered the conventional expression grievous bodily harm:

"despite its somewhat archaic ring, should be adhered to. If the meaning of grievous was to be explained the expression really serious rather than merely serious should be used."[4]

13 The Chief Justice added that in many factual situations serious bodily harm would sufficiently indicate the required intention but that there could well be some factual situations in which the use of that expression would amount to a misdirection. On this basis the Chief Justice said the safer course was to use the phrase incorporated in the classical definitions of the crime of murder, namely, "intent to do grievous bodily harm", with or without the explanation that grievous means really serious. In his reasons, White J said that in many cases grievous bodily harm was explained to the jury as meaning really serious bodily injury, "or in other words which make clear that the intention must be to cause some life threatening harm."[5] Counsel for the appellant relied upon the reference to life threatening harm to maintain that in this case the jury should have been directed that the injury or harm caused had to be life threatening. It was submitted that the evidence was not capable of amounting to grievous bodily harm or really serious bodily injury certainly not life threatening harm.

I think the respondent's submission is correct that the meaning of grievous bodily harm in the context of offences against s21 of the Criminal Law Consolidation Act is not restricted to injuries of a life threatening nature.

I agree also that Perks is not an authority which calls for this court to limit grievous bodily harm to life threatening harm even if that be appropriate with respect to the issue before the court in Perks, the intention to cause death or grievous bodily harm. It was acknowledged in the course of argument that the practice of this court since Perks has not been to give a direction even in murder cases calling for a jury to find an intention to cause life threatening harm to establish the intent to cause grievous bodily harm. The English courts certainly do not require proof of life threatening harm as a necessary way of proving an intent to cause grievous bodily harm in the case of a charge of murder.

16 In DPP v Smith[6] the Lord Chancellor said that whether one is considering the crime of murder or a statutory offence similar to that in the first count in this case there was

"no warrant for giving the words grievous bodily harm a meaning other than that which the words convey in their ordinary and natural meaning. Bodily harm needs no explanation and grievous means no more and no less than really serious."

The Lord Chancellor expressly approved of a decision of the Supreme Court of Victoria, R v Miller[7]

where the ordinary and natural meaning was said to be the only appropriate meaning to be given to the expression grievous bodily harm certainly with respect to the crime of murder. The Lord Chancellor added that he could see no ground for giving the words a wider meaning when considering a statutory offence. The matter was before the House of Lords again in Hyam v The DPP[8]. Two of Their Lordships, when considering the meaning of intent to do grievous bodily harm for the purpose of murder, interpreted that phrase as some injury that was likely to cause death or endanger life.[9] The majority view was expressed by Lord Hailsham.[10] Similar views were expressed by Viscount Dilhorne and Lord Cross.[11] Lord Hailsham said that murder means that a person causes the death of another with the intent to cause death or really serious injury. What injuries are really serious within the meaning of such a definition is a question left for the jury to decide for themselves. He expressly agreed with Lord Kilmuir's statement in DPP v Smith that the ordinary and natural meaning of grievous bodily harm applied with respect to the crime of murder, bodily harm needing no explanation and grievous meaning no more and no less than really serious. The next case in England is R v Cunningham[12], the case cited by White J in Perks. There the House of Lords held that malice aforethought in a conviction for murder can be implied where the accused intended by a voluntary act to cause grievous bodily harm to the victim who died as the result. The House unanimously rejected an argument that an intention to cause grievous bodily harm must involve an intention to endanger life. The law as stated in Smith and Hyam prevailed. An intent to cause grievous bodily harm was not confined to an intent to inflict life threatening harm or harm to endanger life. A similar view has prevailed in New South Wales.[13] Whatever may be the proper state of the law with respect to the crime of murder there can be no doubt that current authority and the language of s21 itself does not call for the limitation and direction advocated by the appellant in the appeal. Blevins is an authority with respect to s21. Within that section it should be remembered that intent to cause grievous bodily harm comes within par(e) of the section. It speaks of the acts identified in pars(a) to (d) occurring with intent to, "(e) maim, disfigure, disable or do other grievous bodily harm to, any person." Given that it is difficult to confine the intent to maim, disfigure or disable to life threatening harm, the same must needs be said of other grievous bodily harm.

It was not necessary to direct the jury that if they had a doubt about the use of the pipe they should regard the balance of Blakeney's evidence as suspect. In this case the danger in acting on Blakeney's evidence whilst not satisfied about the pipe were obvious to the jury. There was thus no need for any warning or any special direction.[14]

The question whether a pipe was used and its impact on Blakeney's credibility was a focal point in this trial. Much was made of that in the addresses in particular. However, there was a need in this case for a special direction to the jury with respect to the first charge that if they thought the injuries sustained were from a single blow with a fist they would have to closely consider whether they were satisfied beyond reasonable doubt that the appellant had acted with intent to cause grievous bodily harm even if it be the jury's view that grievous bodily harm had in fact resulted. As counsel for the Crown fairly conceded in the course of argument before this court, it is very difficult to infer an intention to cause grievous bodily harm from a single blow with a fist.

19 A further ground of appeal was that the trial judge failed to direct the jury that evidence led from Blakeney and a police constable about earlier statements by Blakeney could not be used to prove the truth of those statements. This ground of appeal must be rejected. The direction was not essential in the circumstances of this case. The evidence of what Blakeney said to the police was confined to the description of the pipe. The critical issue at trial was whether Blakeney had told the truth about the use of the pipe.[15] The appellant's case was that Blakeney had fabricated a story in relation to being assaulted with a pipe. The fact that Blakeney gave a description of a pipe before the police found a similar item at the appellant's home was therefore relevant to the truthfulness of Blakeney's assertions. The significance of the evidence must have been apparent to the jury. There was no risk that they could have used the alleged statement to the police in an impermissible way by using it as evidence of the facts contained in it. That being said, even if a direction relating to the use of any previous statement was required, it cannot be said that the failure to give such a direction resulted in any miscarriage of justice. The description of the pipe which Blakeney gave police contained no incriminating allegation that Blakeney did not make in his sworn evidence.

20 A further complaint was that the trial judge erred in referring to a question asked by the prosecution as to what motive Blakeney would have for lying. It was said that proposing such a question was impermissible because it undermined the onus of proof. Reliance was placed upon R v Palmer[16]. In my view, the comments made by the trial judge did not offend the principle for which Palmer's Case stands. That principle is that the absence of a motive to lie cannot be used to buttress the credibility of a complainant. Palmer recognises that within proper limits there can be an inquiry into whether a person has a motive to lie or fabricate an allegation. In this case the appellant's counsel cross-examined Blakeney in relation to a motive for lying suggesting that his motive for lying was a desire to seek criminal injuries compensation for his injuries.[17] There is nothing in the trial judge's remarks to suggest that the jury could use an absence of a motive for lying to bolster Blakeney's credibility. There was no suggestion that there was any onus of proof upon the appellant in this respect.[18] This ground of appeal is not made out.

21 A further ground for appeal was that the trial judge erred in directing the jury that his view was that as between the prosecution witness and the accused someone was telling lies but he failed to direct the jury that their approach to the determination of the proof of the charge did not require a choice to be made between the competing versions. Towards the end of his summing up the trial judge did say that someone was telling a lie. His Honour said that he did not think there was any doubt that someone was telling lies in this case. His Honour then said:

"This is not a case where there could be a mistake. It is only one thing or another. Blakeney is either honest and you are either satisfied beyond reasonable doubt about his evidence or your are not satisfied beyond reasonable doubt about it. But there is no room for mistake or someone just seeing things differently."

In those remarks the trial judge was not telling the jury anything other than that they could not convict unless they were satisfied beyond reasonable doubt that Blakeney was truthful. In that direction there was nothing said inconsistent with the principles stated in R v Calides[19]

23 The verdict of the jury cannot be said to be unreasonable and unsupported on the evidence. Nevertheless, the fact remains that the factual situation before the jury in this case was not the subject of particular directions by the trial judge. Proof of an intention to do grievous bodily harm was not very difficult and certainly the easier if the jury were satisfied beyond reasonable doubt as to the use of the pipe. However, if the jury were not satisfied as to that, but were satisfied that the injuries sustained by Blakeney were caused by a single blow to the fist, the jury could well have had a doubt as to whether the appellant had the intent that had to be proved to make good the first charge. Notwithstanding the submission put by the respondent, I think the verdict on the first count is unsafe on this ground. In my view, the appellant has lost the chance of an acquittal on the first count because of a failure to give the jury adequate directions on the factual versions of events before the court. I would intervene to quash the conviction recorded and substitute a conviction on the second count charging assault occasioning actual bodily harm. The matter should be remitted to the trial judge for consideration of an appropriate sentence.