R v Rehavi [1998] QCA 157

A bar attendant, a Miss Robins, was working behind the bar at the night club near where the incident occurred. Earlier in the evening she had opened a bar account for the appellant and had seen him in the night club once or twice previously. She said that she saw the complainant lean across the appellant and put a glass on the bar. She noted the appellant say something to the complainant and then push him. According to Miss Robins the complainant stepped forward to say something. She described the appellant's action as "it was like an up punch and the glass hit the face" (R.47, line 23). Miss Robins was shown the remnants of a glass which were recovered from the area near where the incident occurred. The remnants appeared to her to resemble the base of a spirit or rocks glass rather than a beer glass. The appellant had previously ordered 2 glasses of double bourbon and coca cola, which was served in spirit glasses.

There was inconsistency between her evidence and that of the complainant. She said that there was no broken glass or spilt ice or drink on the bar in the vicinity of the incident which might have been expected had the glass been up-ended and the top broken as was described by the complainant. She was responsible for keeping this area clean. The manager of the night club was walking towards the bar when he saw the complainant backing away from the appellant. He saw some substance which he thought might have been ice or liquid come past the side of the complainant's head as if it had been thrown towards him. The manager stepped between the two men and pushed them apart. A security guard heard the sound of glass breaking at the bar at about 1.15 a.m. and moved to the bar and saw the complainant's injuries, but his evidence threw no light on the question whether the appellant first broke the glass before thrusting it into the complainant's face.

The injuries sustained by the complainant were a laceration to the left side of the face extending through the skin and muscle layers on to the jaw bone, abrasions over the left cheek, and bruising near the left eye. The injuries resulted in the complainant suffering from numbness in the lower part of his ear and jaw, ringing in his ears and reduced control over the left corner of his mouth resulting in dribbling occurring on occasions when he ate or drank. The numbness and loss of control were likely to be permanent. Dr Burt who treated the complainant's injuries was unable to say from the state of the complainant's wounds whether the glass was broken before it struck his face or whether the glass had broken on his face. He said that at least moderate force was necessary to produce the injuries observed in the complainant and added that "it really requires a fair degree of force to get that far into somebody's face" (R.75, line 10).

The appellant returned to Melbourne a few days later and was interviewed by Victorian police on 15 November 1995. The appellant claimed in that interview that the complainant had behaved aggressively towards one of his companions taking his cigarettes, hitting him in the chest and causing him to fall to the floor. The appellant said that he approached the complainant and in response the complainant swore at him and went to strike him with a glass. The appellant said he grabbed the complainant's hand to defend himself and the complainant's hand bounced on his face with the glass in it, the glass broke and his face was cut.

There are 3 grounds of appeal against conviction. They are that the conviction is unsafe and unsatisfactory because on the evidence no reasonable jury could find beyond a reasonable doubt that the appellant intended to cause grievous bodily harm because the blow might only have been delivered with moderate force, the incident occurred on the spur of the moment and no further blows were delivered. The second ground of appeal is that the learned trial judge misdirected the jury in respect to a certain aspect of the evidence. The third ground is that the learned trial judge misdirected the jury on the question of intent. A further possible ground was raised by the court in the course of submissions as to whether the learned trial judge ought to have left grievous bodily harm simpliciter to the jury. Leave was given to add this ground and further submissions were made. The difficulty for the appellant was that counsel below took up the learned trial judge's postulation at the commencement of the trial that the verdict should be doing grievous bodily harm with intent or acquittal after the prosecutor had sought to present a fresh indictment charging the appellant with the more serious offence of doing grievous bodily harm with intent to do grievous bodily harm when he had originally been charged with doing grievous bodily harm. The tactical decision to do so is bound up in the first ground of appeal that the jury on the evidence could not have been satisfied beyond reasonable doubt about the requisite intention. It will be necessary to say something in a moment about the background to the particular charge which the appellant faced at trial but first the original grounds should be considered.

There was cogent evidence before the jury to prove beyond reasonable doubt that the complainant sustained grievous bodily harm and that the appellant was the person who inflicted it upon him. The evidence of Dr Burt was to the effect that a fair degree of force was needed to inflict the kind of damage seen on the complainant's face. That the blow was struck on the spur of the moment does not necessarily negative intention nor that there was only one blow, nonetheless, if the jury came to the conclusion that the glass was not broken before the complainant's face was struck, the likelihood of an intention having been formed was significantly less than if they found that it had been first broken but it cannot be said to be unsafe on that basis alone.

The alleged misdirection concerning the evidence of Miss Robins was not pursued in oral submissions. In his summing up the learned trial judge commented that no one had asked Miss Robins when she was giving evidence whether she would have seen a glass being broken against the front of the bar and that the pieces of glass might well have fallen on to the floor where she did not clean. Below counsel for the appellant asked the learned trial judge to read the relevant passage of the complainant's evidence to the jury since, he submitted, that the learned trial judge was, by this comment, inviting the jury to speculate and he did so. In that circumstance there is nothing in that ground of appeal.

The third ground relates to a direction to the jury on the question of intent insofar as it was an element of the offence. It is said that the learned trial judge misdirected the jury by failing to classify the Crown case as a circumstantial case and thereby failed to give the usual circumstantial directions. An intention will usually be inferred from the surrounding circumstances and that was the situation here. The learned trial judge said that it was sufficient for the Crown to prove intention by inference and they could draw from facts which they found proven that the accused intended to inflict on the complainant an injury of a kind or nature which he suffered. Earlier in the summing up he had given appropriate directions regarding the drawing of inferences. A direction on circumstantial evidence was neither necessary nor likely to be helpful to the jury. There is no substance in this ground.

A final complaint which is not a separate ground of appeal related to a passage in the summing up dealing with the appellant's interview with the Victorian police. The learned trial judge told the jury that if they considered that the appellant's version of events was "possibly true" they would then go on to consider questions of self defence and accident. Both of these issues were raised on the appellant's account given to the police at interview. This was no more than telling the jury that if they had not accepted the complainant's version how they should then deal with the appellant's version. There was nothing adverse to the appellant in that direction.

We turn now to the additional ground namely, that the learned trial judge erred in not leaving grievous bodily harm simpliciter to the jury. The appellant was originally charged with grievous bodily harm and unlawful wounding. On 8 October 1997 he was arraigned on a charge of grievous bodily harm only. The trial was aborted and a retrial ordered. The new trial commenced on 24 November 1997 and the appellant was arraigned on only the count of grievous bodily harm. On the second day of the trial he was arraigned in respect of the charge of unlawful wounding. The prosecutor did not seek a verdict on the unlawful wounding charge and, as best can be deduced, only grievous bodily harm went to the jury for verdict. The jury were unable to reach a verdict and were discharged and a new trial ordered on the grievous bodily harm charge. The third trial commenced on 27 January 1998 before a different District Court judge. The prosecutor presented a fresh indictment charging one count of grievous bodily harm with intent to do grievous bodily harm. There was no new evidence to be adduced. The Crown had indicated a willingness earlier to accept a plea of grievous bodily harm. An intimation had been given to the defence of the intention to present a new indictment charging the more serious offence on the Friday before the trial commenced on the following Tuesday, the next business day.

Defence counsel sought a stay of the new indictment. The learned trial judge suggested that he could direct, because of the change of "tack" by the Crown, that no alternative verdict should go to the jury. The verdict, he suggested, would be grievous bodily harm with intent or not guilty. The prosecutor agreed that the trial judge could proceed in this way and was content that that should occur. After apparently explaining alternative verdicts to his client, defence counsel below agreed in that course and the appellant was arraigned on the new indictment. The learned trial judge directed the jury only in respect of the offence charged and did not tell them that if they had a reasonable doubt as to whether the appellant had formed an intention to do grievous bodily harm when he struck the complainant in the face, they could find him guilty of the lesser charge of grievous bodily harm provided they were satisfied of the other elements of the offence.

The question is whether, in light of the acceptance by the defence of an "all or nothing" approach to the charge was the learned trial judge nonetheless under a duty to advise the jury of their right to bring in a lesser verdict? Section 575 of the Code provides that where a person is charged on indictment with an offence committed with a circumstance of aggravation, the person may be convicted of any offence which is established by the evidence and which is constituted by any act or omission which is an element of the offence charged with or without the circumstance of aggravation. The offence of grievous bodily harm with intent carries a penalty of life imprisonment and grievous bodily harm a maximum term of imprisonment of 14 years and falls fairly within s.1 of the Code as a circumstance of aggravation.

In R v Short [1928] St R Q 246 an indictment charged the accused with breaking, entering and stealing. The Court of Criminal Appeal held that since it was open under s.575 for the jury to find the accused guilty of stealing, failure to leave that alternative to the jury amounted to a miscarriage of justice without more. In R v Vella [1938] St R Q 289 Latham CJ hearing an application for leave to appeal from a decision of the Queensland Court of Criminal Appeal rejected, at p. 290, an argument that a trial judge on every occasion is required to tell the jury that it is open to them to find the accused guilty of the minor offence within the charge where the law so provides and said that it must depend on the facts of the case.

There are a number of cases concerning leaving the alternative verdict of manslaughter to the jury in a murder trial. There is no logical reason for confining the reasoning to murder and manslaughter, see discussion by King CJ in Benbolt (1993) 67 A Crim R 11 at pp. 15 et seq. In Pemble v The Queen [1971] HCA 20; (1971) 124 CLR 107 the trial was conducted on the basis of murder or manslaughter. The defence did not contend for an acquittal and the trial judge so directed the jury. The High Court held that there was a basis in the evidence for acquittal and that the judge was in error in failing to leave that possibility to the jury. Barwick CJ said at pp. 117-118:

"There is no doubt that the course taken by counsel for the appellant at the trial contributed substantially to the form of the summing up. If the trial had been of a civil cause, it might properly be said that the trial judge had put to the jury the issues which had arisen between the parties. But this was not a civil trial. The decision of the House of Lords in Mancini v. Director of Public Prosecutions [1942] A.C.1 following Lord Reading's judgment in R. v. Hopper [1915] 2 K.B. 431 and its influence in the administration of the criminal law must ever be borne in mind (see Kwaku Mensah v. The King [1946] A.C. 83 at p. 92-94). Whatever course counsel may see fit to take, no doubt bona fide but for tactical reasons in what he considers the best interest of his client, the trial judge must be astute to secure for the accused a fair trial according to law. This involves, in my opinion, an adequate direction both as to the law and the possible use of the relevant facts upon any matter upon which the jury could in the circumstances of the case upon the material before them find or base a verdict in whole or in part....

Here, counsel for the defence did not merely not rely on the matters now sought to be raised; he abandoned them and expressly confined the defence to the matters he did raise. However, in my opinion, this course did not relieve the trial judge of the duty to put to the jury with adequate assistance any matters on which the jury, upon the evidence, could find for the accused."

In Varley v The Queen (1977) 51 ALJR 243 the jury returned a verdict of not guilty of murder but guilty of manslaughter, but until the conclusion of the accused's address there had been no suggestion of an alternative verdict. The judge indicated his intention to direct the jury as to manslaughter. The prosecution then addressed and the judge afforded the accused who was self represented an opportunity which he took to address the jury in reply. A ground of appeal was that he was so disadvantaged by not having an opportunity to address the jury on the question of manslaughter that there had been a miscarriage of justice. Barwick CJ delivering a judgment in which the other members of the court agreed said at p. 245:

"In relation to the submission as to the judge's decision to direct the jury as to the possibility of a verdict of manslaughter after the appellant had addressed the jury, it should first be said that if there were a basis in the evidence on which the jury, not being satisfied of all the elements of murder, could find manslaughter, he was bound to direct the jury accordingly. His duty in that regard cannot be controlled by the tactics or manoeuvring of the accused or of those representing him. So much clearly appears from the decided cases, e.g. Mancini v Director of Public Prosecutions (supra); R v Gammage [1969] HCA 68; (1969) 122 CLR 444; Pemble v The Queen [1971] HCA 20; (1971) 124 CLR 107. The duty to give the appropriate direction is owed to accused and Crown alike, for if the evidence will bear the conclusion of manslaughter, in default of the jury's satisfaction of all elements of murder, the Crown is not to be denied a verdict nor the accused entitled to an acquittal."

See also Markby v The Queen [1978] HCA 29; (1978) 140 CLR 108 per Gibbs ACJ at p. 113.

This question has been debated more recently where the alternative verdict has been belatedly left for the jury's consideration by the trial judge, R v Cameron [1983] 2 NSWLR 66 and R v Van Bay Che (1988) 50 SASR 1. In R v Fitzpatrick (1988) 50 SASR 10 Matheson J

"It has always been accepted that a trial judge has a duty in his summing-up to direct the jury as to any alternative verdict that is open on the evidence, even if such a verdict has not been mentioned by counsel in their final addresses, or even by the prosecutor in his opening address ...".

"There must be much to be said for an opinion that if an alternative verdict is open in law then it may be returned whether the Crown Prosecutor has said anything about it or not and without any specific notice to the accused."

The New South Wales Court of Criminal Appeal in R v Pureau (1990) 19 NSWLR 372 disagreed with these observations. Hunt J with whom the other members of the court agreed said at p. 377:

"In this State, moreover, this court has taken the view that the judge's obligation to put an issue to the jury which has been neither propounded nor developed by the Crown is one which arises only out of his duty to ensure a fair trial according to law, and that he must keep in the forefront of his mind in deciding to do so the fairness of such a course and, in particular, any tactical disadvantage which it may create for the accused ...".

In Pureau the trial judge, without consulting counsel, and where the alternative verdict was not sought by the prosecutor and not addressed upon by either counsel, left open a verdict of an attempt to commit the charge (without direction as to how that offence might be established on the facts). See also Quinn [1991] 55 A Crim R 435.

"There are strong considerations of justice and policy in favour of the disposal of all alternatives at the trial and the judge ought not lightly to take a course which would preclude consideration of an alternative to the offence charged. I consider that it is his duty to raise alternatives on his own initiative if there is a reasonable basis for them in the evidence, subject only to overriding considerations of fairness."

The principle is clear that a failure to direct a jury as to an alternative verdict of a lesser offence open to them does not entitle the accused to complain unless the failure had deprived him of a chance of acquittal of the major crime."

His Honour dissented but only in respect of the facts. Perry J in the same case said at p.27:

"There is no room for a tactical "all or nothing" approach on the part of the Crown if the alternative is fairly open on the Crown case. The alternative should not be kept back under wraps by the Crown, only to be brought out if a "no case" submission shows signs of success. Indeed, I have come to the view that if the Crown does not open on the alternative when it should have done so, the trial judge should draw the attention of the jury to the alternative before evidence is called. Ideally, the members of the jury should have the alternative in mind when they hear the evidence."

At p.28 he observed that where a lesser charge should have been but was not left to the jury if there was no reason to doubt the soundness of the guilty verdict on the major charge it should be left undisturbed. Duggan J who constituted the majority with Perry J said at p.29:

"However there are some cases in which a material irregularity may arise if the trial judge refrains from mentioning the possibility of a verdict of guilty of an alternative offence. This will be so if the alternative fairly arises for consideration on the evidence and the failure to leave it to the jury deprives the accused of a chance of acquittal on the major offence."

This was the approach of the Court of Appeal in England in R v Fairbanks [1986] 1 W.L.R 1202 and R v Maxwell [1988] 1 W.L.R. 1265. In the latter case the trial was a contest between robbery and burglary and the accused had never suggested to the jury that he was entitled to an acquittal. The nature of the indictment forced the jury to make "a wholly artificial choice" between convicting the accused of robbery and acquitting him altogether. Mustill LJ at p.1268 said:

"The judge should not have allowed the prosecution to shut out the possibility of an intermediate verdict, the more so since the jury's question indicated that they had such a possibility in mind. ... There was a risk that the jury might be driven to compromise with the standard of proof rather than see Maxwell escape unpunished for the serious offence which he had admitted."

In R v Fairbanks [1986] 1 W.L.R. 1202 Mustill LJ reading the judgment of the court said at pp. 1205-6:

"These cases bear out the conclusion, which we should in any event have reached, that the judge is obliged to leave the lesser alternative only if this is necessary in the interests of justice. Such interests will never be served in a situation where the lesser verdict simply does not arise on the way in which the case had been presented to the court: for example if the defence has never sought to deny that the full offence charged has been committed, but challenges that it was committed by the defendant. Again there may be instances where there was at one stage a question which would, if pursued, have left open the possibility of a lesser verdict, but which, in the light of the way the trial has developed, has simply ceased to be a live issue. In these and other situations it would only be harmful to confuse the jury by advising them of the possibility of a verdict which could make no sense.

We can also envisage cases where the principal offence is so grave and the alternative so trifling, that the judge thinks it best not to distract the jury by forcing them to consider something which is remote from the real point of the case: and this may be so particularly where there are already a series of realistic alternatives which call for careful handling by judge and jury, and where the possibility of conviction for a trivial offence would be an unnecessary further complication.

On the other hand the interests of justice will sometimes demand that the lesser alternatives are left to the jury. It must be remembered that justice serves the interests of the public as well as those of the defendant, and if the evidence is such that he ought at least to be convicted of the lesser offence, it would be wrong for him to be acquitted altogether merely because the jury cannot be sure that he was guilty of the greater."

"The right course will vary from one case to another, but the judge should always use his powers to ensure, so far as practicable, that the issues left to the jury fairly reflect the issues which arise on the evidence."

Here there was compelling evidence from Miss Robins and the manager that it was the appellant who acted aggressively towards the complainant and not, as he would have it, reactively to an apprehended attack by the complainant. However, the evidence was far from clear as to whether the appellant broke the rim of his glass before thrusting it in the complainant's face or whether the glass broke on his face. If it were the former that would be compelling evidence of an intention to commit grievous bodily harm. If the latter then a reasonable jury may have had a doubt as to his state of mind. In the light of that evidence it was wrong not to inform the jury that they could convict of the lesser offence if they were not persuaded beyond a reasonable doubt of the appellant's mental state at the time, notwithstanding the tactical decision taken by the appellant below and which the prosecution was content to adopt. There is a public interest in a fair trial and a jury ought to be permitted to return any verdict available on the evidence if that is consistent with justice to the accused. To shut the jury out from the lesser verdict compromised the verdict given. There was, in our view, a real risk that the jury, being persuaded that the appellant had inflicted serious injury on the complainant, and without compromising their oaths, were prepared to infer the necessary intent rather than acquit him altogether. The appellant has thereby been deprived of the opportunity of a verdict on the lesser offence.

The question then is what ought to happen? Mr Farr, counsel for the appellant (not counsel below) conceded that the verdict below together with the evidence supported a conclusion that at the least the appellant was guilty of grievous bodily harm. Against the background of the history of this matter, in our view, the appropriate course is, pursuant to s.668F (2) of the Code, to substitute for the verdict found by the jury a verdict of guilty of doing grievous bodily harm. In that circumstance the court may also pass such sentence in substitution as may be warranted. Bearing in mind the seriousness of the attack and its consequences for the complainant, the appropriate sentence for the offence of doing grievous bodily harm, in our view, is one of 3 years imprisonment which both counsel agreed was an appropriate penalty. It is, accordingly, unnecessary to consider the application for leave to appeal against sentence.

We would allow the appeal and set aside the verdict below and substitute in lieu thereof a verdict of guilty of doing grievous bodily harm. We would set aside the sentence imposed below and in substitution sentence the appellant to imprisonment for 3 years and dismiss the application for leave to appeal against sentence.