Regina -v- Baker [1999] NSWCCA 129

2 IRELAND J: The appellant, Mark John Baker, was indicted on 12 August, 1997 before his Honour Acting Judge Cantrill in the Campbelltown District Court on two counts, alleging that he on 23 November, 1996 at Minto in the State of New South Wales did maliciously wound Linda Baker with intent to murder her in contravention of S 27 of the Crimes Act, 1900 and in the alternative, that he on the same date and at the same place did maliciously wound Linda Baker with intent to do grievous bodily harm in contravention of S 33 of the Crimes Act, 1900. 3 Each of these offences carries a maximum penalty of 25 years penal servitude. 4 The appellant pleaded not guilty to each count and was tried by his Honour sitting alone. The appellant represented himself. 5 On 15 August, 1997 the appellant was found not guilty of counts 1 and 2 on the indictment, but was found guilty on a further statutory alternative charge of malicious wounding, pursuant to S 35 of the Crimes Act, 1900. This offence carries a maximum penalty of 7 years penal servitude. 6 The appellant was sentenced on 15 August, 1997 to 2 years penal servitude to commence on 11 December, 1996 and to expire on 10 December, 1998 with a 2 year additional term commencing on 11 December, 1998 and to expire on 10 December, 2000. Accordingly, the appellant has served the minimum term of his sentence. 7 The Crown case may be briefly summarised as follows:- 8 The appellant and the victim had been married. There were three children of the marriage. The victim and the appellant were living together until November of 1995 when they separated. In December 1995 the appellant moved back into the former matrimonial home without the victim's consent. 9 On 4 March 1996 there was an incident between the appellant and the victim which resulted in the victim suffering a number of injuries and an apprehended violence order was obtained against the appellant who pleaded guilty to a charge of assault occasioning actual bodily harm arising from that incident. 10 A second incident occurred involving the victim and the appellant and regardless of the apprehended violence order, there was continual contact between the appellant and the victim by telephone. During the course of these conversations, threats were made to the victim by the appellant. 11 An incident occurred on 22 November, 1996 when the appellant was served with Family Law related documents, which he tore into two pieces saying to the process server words to the effect that he would not be in the country on the relevant date. 12 The next day, 23 November, the incident being the subject of the indictment took place. 13 The victim gave evidence that she returned home from work at 12.30 am. She was waiting for her son to return from work at McDonalds and expected him home about 2.30 am. About 12.40 am the victim remembered she had not locked the tailgate of her car. She went outside to attend to this and heard a car, which she said sounded familiar, come up the street from her right. She walked up the driveway and had stepped out onto the gutter. The victim saw the appellant's car. She thought the appellant was about to park, as the car had slowed down. She intended to say something to the appellant about being in contravention of the apprehended violence order. She saw the car coming towards her and before she knew what had happened, she had been hit by the front grille and thrown on top of the bonnet of the appellant's vehicle. 14 The victim recalled waking up in bed in her home from where she could see ambulance officers who had placed a brace on her neck. She recalled police officers standing in the doorway of her bedroom. She was conveyed to Campbelltown Hospital, where she stayed until the following Tuesday. The victim gave evidence of having been in severe pain in her shoulders, head, stomach, legs and ankles. She had ringing in her ears and had received fifteen sutures to a full thickness head wound. 15 These injuries to the victim were described in evidence by her general practitioner, who attended her after discharge from hospital. 16 At 12.30 am on 23 November, 1996, within minutes of the impact, the appellant attended Campbelltown Police Station where he said to a police officer "I've hit my wife, I've run her over". He was asked if she was all right and replied "No she's still on the road". He appeared distressed at that time. He continued to cry and was told to sit down. A police officer, who inspected the appellant's motor vehicle, observed some fresh damage to the plastic grille, part of which was missing, and saw marks which appeared to be scuff marks in the centre of the bonnet. 17 The bruising observed on the victim, and recorded in photographs, was consistent with the zig-zag configuration of the broken grille of the appellant's motor vehicle. 18 The appellant entered into an electronically recorded interview regarding the incident in which he said the victim came out on to the road and he hit her, however, when he saw the victim his foot remained on the accelerator. 19 The appellant gave evidence in which he denied the version of events given by the victim regarding the 4th March, 1996 incident, however, he admitted having hit the victim in the past. He admitted being served with the Family Law documents on 22nd November, 1996, but otherwise rejected the evidence in the Crown case in relation to this. 20 The appellant gave evidence that on 23 November, he had driven down the street where the victim lived to see if the lights were on in the house. He had been aware of the lateness of the evening, however, he knew the victim and their son Jason worked late hours. He said that if he had seen the lights on he would have known that they were awake and he would have moved out of the area to make a telephone call to the victim to discuss whether Jason could assist him in some renovation work. 21 In evidence given by the appellant in cross-examination, he stated that the victim had run out in front of his car and that he had not purposely run her over. He gave further evidence that he had not seen the body, just a flash. He had been travelling and then "she come running out across the - in the middle of the street". He had not used his brakes at all but swerved to miss her and as the victim rolled to the side he continued on his way. He only slowed down for an intersection that he knew existed in the area. (T.207.54-208.05) 22 There are four grounds of appeal. 23 Ground 1: The Judge erred in his directions on malice. 24 The submission is made that although the sentencing judge outlined the statutory definition of "malice" (S 5 of the Crimes Act) at no other point in the summing up did he turn his mind to the meaning of "recklessness". 25 The further submission is made that the case depended entirely on the account given by the complainant, whom the judge found to be an unsatisfactory and unconvincing witness. Particular reference is made to that part of the judgment in which the trial judge stated "She was not in my view, a particularly impressive witness and I regard her as prone to exaggeration in respect of the events she described and unreliable in others". (At p 5.) Reference is also made to the passage of the judgment in which the following appears:- 26 "I find the suggestion that she lost consciousness and only regained it when she was apparently already on her feet, being led back to the house, as not credible". (At p 6) 27 In this latter regard, it must be remembered that this was a reference not to the events giving rise to the charges which the appellant faced, but was a description of events relating to an assault on the victim by the appellant on the 3rd March, 1996 to which the appellant pleaded guilty. This incident was the foundation for the apprehended violence order restraining the appellant. 28 In support of this ground, counsel for the appellant relies upon the fact that the trial judge was not satisfied as to the intention of the appellant to kill or to cause grievous bodily harm and hence returned verdicts of not guilty on the two counts on the indictment, but nevertheless found "I am, however, satisfied that he either intended to cause her some injury or at the very least, was reckless as to whether or not she was hurt" (emphasis added) (judgment P 15-16). Hence, so the argument runs, the reference to "recklessness", identifies the aspect of "malice" which formed the basis of the finding of guilt on the statutory alternative count. It is submitted that the judge failed to direct himself that "recklessness" embodies a realisation on the part of the accused that the particular kind of harm in fact done might be inflicted and, at the relevant time, the accused had a foresight of the possible consequences and a willingness to act irrespective of that foresight. Cited is R -v- Coleman (1990) 19 NSWLR 467 and Stokes and Difford (1990) 51 A Crim R 25. 29 The absence of a finding that the appellant did foresee the possibility of injury to the complainant, is said to constitute a breach of S 33(2) of the Criminal Procedure Act, which requires that "A judgment by a Judge in any such case (sitting without a jury) must include the principles of law applied by the Judge and the findings of fact on which the Judge relied" 30 This breach, it is submitted, involves a wrong decision in terms of the second limb of S 6(1) of the Criminal Appeal Act. 31 The submission is made that because the trial judge was not satisfied that the appellant drove his motor vehicle at the complainant with the necessary intention to kill her, or to cause her grievous bodily harm, it necessarily follows that he could not have been satisfied on the criminal standard of proof that the appellant "… either intended to cause her some injury or at the very least, was reckless as to whether or not she was hurt". 32 Whilst there may be, in circumstances such as those prevailing in the present case, a fine line between the intention necessarily to be found as an element of charges laid under Ss 27 and 33 of the Crimes Act and a finding of malicious wounding under S 35, the distinction nevertheless is critical and where the tribunal of fact is not satisfied to the requisite degree as to the element of intent the proper course is to consider the statutory alternative count. 33 The finding by the trial judge that the appellant saw and recognised his wife in his path and "in a momentary explosion of anger at all the injustices he believed had been heaped upon him at her instigation ... at the very least, did not bother to try to avoid her ..." is, in my view, clearly capable of supporting a finding that the act was done "maliciously" based upon "reckless" behaviour. 34 The duty imposed upon the trial judge by S 33(2) of the Criminal Procedure Act, 1986 is to include in his judgment the principles of law applied by him and the findings of fact relied upon. This duty, in my view, does not require the restatement of the definition of every defined word, e.g., "reckless": the facts found by the trial judge full justify the conclusion reached that the appellant was reckless. 35 This ground is not made out. 36 Ground 2: The Judge failed to refer in his reasons for judgment to a warning that the complainant's evidence may be unreliable and was to be scrutinised with great care before a conclusion was arrived at and a verdict of guilty delivered. 37 The victim's evidence was central to the Crown case. She and the appellant were the only persons present and the Crown case necessarily depended upon her evidence. 38 The trial judge found it to be "patently evident" when the victim was giving evidence she harboured a substantial degree of "bitterness bordering on outright animosity towards the accused, her former husband", which predated the events which were the subject of the indictment. She was regarded by the trial judge as not being "… a particularly impressive witness …" who was "… prone to exaggeration in respect of the events she described and unreliable in others". 39 I accept the submission made on behalf of the appellant that had this been a case conducted with a jury it would have been necessary to stress to the jury that, there being only one witness asserting the commission of the offence, the evidence of that witness was essentially to be scrutinised with great care before a conclusion was arrived at and a verdict of guilty brought in. Regina -v- Murray (1987) 11 NSWLR 12 @ 19. See also Longman -v- The Queen (1989) 168 CLR 79 @ 107; Fleming -v- Regina 158 ALR 379. 40 Section 33 of the Criminal Procedure Act, 1986 provides:- 41 "33. Verdict of single Judge 42 (1) A Judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury on the question of the guilt of the accused person. Any such findings has, for all purposes, the same effect as a verdict of a jury. 43 (2) A judgment by a Judge in any such case must include the principles of law applied by the Judge and the findings of fact on which the Judge relied. 44 (3) If any Act or law requires a warning to be given to a jury in any such case, the Judge is to take the warning into account in dealing with the matter." 45 The High Court of Australia in Fleming, with respect to the requirement to take a warning into account said in the judgment of the Court at 389 [31] and following:- 46 "Section 33(3) is framed in a fashion which differs from that of s 33(2) and which emphasises the particular importance attached by the legislature to the requirements of the law with respect to warnings. Section 33(2) requires the inclusion of principles of law applied and of factual findings relied upon, while s 33(3) obliges the judge to take the particular warning into account." 47 The evidence of the victim in the circumstances of this case would have warranted a warning under S 165 of the Evidence Act. Had the case been conducted with a jury, it would have been incumbent upon the trial judge to inform the legally unrepresented appellant of his right to request a warning pursuant to S 165. 48 Notwithstanding the obvious care with which Acting Judge Cantrill approached the function of a trial judge sitting without a jury, his reasons for judgment do not disclose expressly or by implication, that the principle of law relating to an appropriate warning as to the evidence of the victim was applied. In these circumstances, it should be taken that the principle was not applied, rather than applied and not recorded; Fleming at 389[30]. 49 In my view, there was a failure by the trial judge to include in his judgment reference to the warning which was required to be given to a jury. There was demonstrated, accordingly, a breach of S 33(3) of the Criminal Procedure Act, that the judge "take the warning into account", which constituted a wrong decision on a question of law attracting the second limb of S 6(1) of the Criminal Appeal Act. 50 This ground of appeal should be upheld. 51 Ground 3: His Honour erred in his directions by failing to refer in his reasons for judgment to the principles of law concerning lies told by the appellant 52 In his reasons for judgment, the trial judge at p 2 said "Consciousness of guilt is something which may be inferred from other things, of telling lies either in or out of Court or in the course of evidence". 53 In considering the evidence of the appellant, the trial judge at p 14 of his reasons for judgment said:- 54 "The most significant feature is that at no stage during the interview did it appear the accused was in any doubt whatsoever as to the identity of the person whom he struck with his vehicle and was indeed extremely concerned for her welfare. 55 However, in cross-examination by the Crown he claimed he did not know who or what had struck the vehicle. He did not recognise the person or object and did not even see a face, just a body. He tried to avoid it be steering away, but she hit the car. He says "I just saw a flash of like white. I didn't even see a distinct legs or arms or body. I just saw a flash of white and I tried to steer to the right. If it was a big bird or a dog I was still trying to veer away from that object". 56 This is totally inconsistent in my view, with what he told the police only a short time later and possibly the one part of the accused's evidence I cannot accept." 57 The submission is made, on behalf of the appellant, that it was open to the trial judge to reject the evidence of the appellant, however if he were to reject what was in effect crucial evidence of the appellant going, as it did to his awareness of the person he struck with his motor vehicle being his wife, and were to rely upon the rejected evidence as a lie told as a result of consciousness of guilt, a number of directions should have been adverted to as having been taken into account. They include: the evidence must reveal a deliberate lie, not an error or an untruth arising from confusion; the lie must clearly be shown to be a lie by evidence other than that to be corroborated; the lie is only to be taken into account if it revealed knowledge of the offence or some aspect of the offence and because of a realisation of guilt or fear of the truth. The further submission is made that the trial judge should have warned himself that there may be reasons for a lie other than consciousness of guilt such as panic. Edwards -v- The Queen (1993) 178 CLR 193; R -v- Lucas (1981) 1 QB 720 and further that the fact that a lie has been told does not of itself establish a proposition to the contrary. Edmunds -v- Edmunds and Ayscough (1935) VLR 177. 58 The respondent contends that the finding by the trial judge that the appellant's evidence in this regard was untrue would warrant the conclusion that the evidence amounted to a lie told because of consciousness of guilt. Justification for this contention is supported by reference to the findings of fact available to and made by the trial judge. 59 However, the fact that a conclusion by a trial judge sitting alone may be justified is not enough. He or she must enunciate the principles of law applied as well as the findings of fact relied on. 60 In my view, this was not done and a breach of S 33(2) has occurred. 61 This ground of appeal also should be upheld. 62 Ground 4: The conviction is unsafe and unsatisfactory. 63 The appellant submits that the sufficiency and quality of the evidence is such as to preclude satisfaction on the criminal standard that the appellant was guilty of "malicious wounding". Reliance is placed on the criticisms of the complainant's evidence by the trial judge. 64 The respondent submits it does not follow that because the trial judge had doubts as to whether the appellant intended to cause grievous bodily harm, that he ought to have doubts as to whether the appellant intended to cause any injury at all. The very nature of what the appellant did is eloquent as to his lack of regard for the avoidance of injury to the victim. 65 The respondent has summarised twelve aspects of the evidence upon which the Court could rely in reaching the conclusion that the appellant was guilty of an offence under S 35 of the Crimes Act. 66 My own view is that there was ample evidence upon which the trial judge could rely in reaching the conclusions he arrived at. 67 This ground of appeal fails. 68 The matters raised in Grounds 2 and 3 give rise to substantive questions of law and application of the proviso is inappropriate. 69 I would propose the following:- 70 1. The appeal be allowed. 71 2. The conviction and sentence quashed. 72 3. A new trial ordered. 73 Whether a new trial should be undertaken, in view of the events which have transpired, is a discretionary matter for the Director of Public Prosecutions. IN THE COURT OF

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