REGINA v. SAMPSON [2003] NSWCCA 66

1 MEAGHER, JA: I agree with Greg James, J. 2 WOOD CJ at CL: I have read in draft form the judgment of Greg James J. I agree with the orders proposed, and with the reasons of his Honour. 3 GREG JAMES, J: This appeal by Brett Herbert Sampson from his conviction on one count of maliciously inflicting grievous bodily harm with intent to do grievous bodily harm, an offence against s.33 of the Crimes Act 1900, was allowed by the court on 5 December 2002. A verdict and judgment of acquittal was entered. The sentence was quashed and the Crown appeal against the inadequacy of sentence was dismissed. 4 That order was made at that time, having regard to the period during which the appellant had been in custody, the imminent expiry of the law term, and the difficulties in giving full reasons at that time. In a short judgment given that day, I indicated that those reasons were reserved and would be given later. 5 I now express my reasons for having reached the view which supported the conclusion to which the court came on 5 December 2002 that the conviction and verdict should be set aside as unreasonable or such as cannot be supported having regard to the evidence - see Criminal Appeal Act 1912, s.6(1). 6 The case put at trial by the Crown was that the appellant had maliciously inflicted grievous bodily harm upon one Paul Votano with the intent of causing that harm. It was the Crown case that the offence was committed by the appellant by punching the victim in the face with a beer glass intending to cause grievous bodily harm to him by doing so. It therefore became necessary for the prosecution to establish beyond reasonable doubt that the appellant deliberately struck the victim to the side of the head with a beer glass. (I put aside the question of whether there also was the necessary further intent.) 7 There was also available at trial on the indictment then presented and also available to this court, an alternative count, that the appellant maliciously inflicted grievous bodily harm upon Paul Votano, an offence under s.35 of the Crimes Act 1900. That offence, however, although it did not require the Crown to prove the specific intent that grievous bodily harm be caused, nonetheless did require, as did the offence under s.33, the proof beyond reasonable doubt by the Crown in the circumstances of this case of the deliberate striking by the appellant of the victim on the side of the head with the beer glass. 8 In this case, it is not necessary to examine further the ingredients of "maliciously" since the matter at issue concerns the evidentiary support for any finding that such a deliberate striking had occurred in the context that there was no direct evidence of the striking by the accused of the victim with the glass. 9 The events giving rise to the victim's injury took place on the evening of Sunday 12 August 2001 in the bar of the Ocean Beach Hotel at Umina. 10 Mr. Votano was highly intoxicated by the time his injury occurred that night. He gave evidence that during that evening he had been in the bar area standing beside a table where a woman was seated. He struck up an amiable general conversation with her. The appellant had been seated at the end of the table at which that woman had been seated. There was conversation between the appellant and Mr. Votano in which the appellant told Mr. Votano, "That's my girlfriend" and Mr. Votano replied, "We're only talking. Do you have a problem with that?". Mr. Votano then said he felt:- "A huge impact to the left side of my face. The left side of my face went dark and I remember, I remember saying to my, thinking to myself something very bad has happened to me." 11 In response to a leading question from the Crown Prosecutor, he said that after he felt the hit to the left side of his face, he could no longer see out of his left eye. He believed that he was standing when he was so hit and wasn't on the floor. He compared the impact upon him with that of a "baseball bat or something". He said that "the left of his face went blank or dark". He could not remember falling; the next thing he could remember was lying on the floor with people surrounding him. He did not actually see what he was hit with. He could not feel any injury. He remembers lying on his back on the floor unable to see out of his left eye. 12 In due course he was taken to the Sydney Eye Hospital and his left eye was surgically removed as a consequence of permanent damage sustained from lacerations due to pieces of glass in his eye. There was medical evidence that his injuries were consistent with his having been hit with a glass and police took possession of a broken schooner glass from the hotel that had blood matching the blood of Mr. Votano detected on it. Both in evidence in chief and in cross-examination, it was entirely clear that Mr. Votano's recollection of the events and circumstances under which he was struck was hazy, at best. 13 Versions of the conversation he had with the woman or women seated at the table and of the events that then transpired were put to him. He did not recall the matters put. There was, in due course, in the trial evidence to support those versions which differed substantially from even the summary account he had given in his evidence in chief. 14 He denied the suggestion put to him that he had struck the man at the table but conceded gaps in his recollection and imperfections of recollection in what he could recollect. At no stage did he see the man at the table with a beer glass in his hand. Nor did he see who struck him. 15 Mr. Paul Williams, who was called to give evidence in the prosecution case, thought Mr. Votano's head hit him in the arm which caused him to collapse onto the ground. Mr. Votano fell on top of him, face up. There was a scuffle on the ground; he tried to protect Mr. Votano's head, he said. People came to help and Mr. Votano was lifted to a seated position. Mr. Williams also was heavily intoxicated. He had noted Mr. Votano seated alone prior to the event of Mr. Votano's head striking his arm. He had intermittently observed Mr. Votano sitting there prior to that event. When he looked at Mr. Votano after the fall on top of him, he noted the blood coming from Mr. Votano's eye and thought that he might lose it. However, he could not see anyone else close to either himself or Mr. Votano. He was unable to describe what happened in the scuffle. He was unable to say whether there was broken glass in the vicinity or not. 16 Dr. O'Leary gave evidence of Mr. Votano's eye injury and, in particular, of a maceration of and a deep laceration to the eye. He noted the presence in the eye of a piece of glass a half a centimetre, or a centimetre at the most, into the eye. Dr. O'Leary gave evidence that the injuries to the eye could have been occasioned by the striking of the victim or him striking broken glass. It was possible he said that the injury might have been caused by the victim having been hit with a glass with some force. 17 Belinda Commons had been a bar attendant at the hotel that night. She had seen Votano sitting at a table near the bar. Subsequently, she heard a, "sort of a thump, sort of commotion, just a loud sort of noise coming". She had looked across and saw two men, one with his back to her, the other facing her, and they were in some sort of argument or fighting. She saw one man throw, "what I saw and what I believed as two punches". Mr. Votano was standing with his back to her. The other man was facing her threw two punches. When she saw this occurring, the men were standing, but by the time she got there, the men were on the ground. Votano was face up on the ground. The other man was "sort of like over the top of him". 18 After, "the other man [the appellant] was pulled off the top of him". She saw blood coming from Mr. Votano's eye. She made no particular note of anything on the floor in the vicinity of the two men, but had seen broken glass on the floor of the hotel that night. She had, herself, picked up probably about three bits of glass. She was present when one of the police officers found the broken glass bottom that was later revealed to have on it the blood of the victim. She had swept up what broken glass was on the floor, keeping the larger pieces before the police arrived. But after their arrival there was still a lot of glass around. 19 She did not see what it was caused the victim to go to the floor, but it was after the punches that she had described. She could not say whether or not the victim had initially landed face down on the floor. She had not seen any table turned over at the time of the punches, but did not notice whether any table being turned over occurred later. There was no evidence from this witness to suggest the appellant had a glass in his hand or struck Mr. Votano with one. 20 Michael John Gaut, an assistant hotel manager, saw two people fighting on the floor of the bar area, Votano being on the bottom, the appellant being on the top. There was an overturned table near them. He could not recall whether Votano was face up or face down, but he was on the bottom of the two men fighting on the floor. He gave evidence there was broken glass scattered in the general area. 21 Assistant manager Damien Arkins heard noise and yelling and turned around to see two men having a scuffle. They were falling back onto the ground. Mr. Votano fell to the ground first and his face was upwards. The appellant was on top of Mr. Votano. He too noticed glass on the floor and, in particular, a broken glass, possibly a schooner glass. He was unable to say whether the broken glass came from more than one glass, from a middy glass or a schooner glass. There was a table overturned nearby. The scuffle involved the two men wrestling and falling to the floor. He did not see any injury being inflicted to the eye region of the man that was later seen to be hurt. 22 The appellant gave evidence and was cross-examined. It was his account that Mr. Votano approached the table at which he was sitting with his girlfriend, Amanda Goodwin, and a friend of hers, another woman Rebecca Broxom. He said Mr. Votano leaned over the women, slurring his words, and spoke to them. Ms. Broxom's fiancé arrived outside the hotel and she stood up and went out to him. Amanda Goodwin followed Broxom with the appellant behind. The appellant gave evidence that as he walked past Votano he said, "You're nothing but a dirty old man, what makes you think you're getting anywhere with the girls". Votano then turned and punched him. The appellant grabbed him in the chest, they wrestled with each other. The appellant was hit a few times; he hit a table behind him; he heard glasses fall over; he felt another punch. He hit Votano and they proceeded to fall to the ground. When they fell, Votano was below him and the appellant hit him two or three times but stopped when he realised Votano was not fighting back. He denied at any stage attacking Votano with a glass. 23 Amanda Goodwin gave evidence confirming the account given by the appellant. She said that when she was seated with Rebecca Broxom and the appellant, Votano came over to their table and whilst speaking appeared to be staring at their breasts. When Ms. Broxom started to leave, the appellant and Ms. Goodwin were following her. She turned to see if the appellant was behind her and she saw him at their table standing near Mr. Votano. She heard the appellant say to Votano something to the effect, "What makes you think you'd get anywhere with the girls", or "wake up to yourself" and saw Votano punch the appellant in the face. The men then fell back onto the table. She heard stools fall over and glass shattering. She saw the appellant punch Votano as they were moving along the table. She did not see anything in his hands. The men fell to the floor with the appellant on top and were struggling. 24 Rebecca Broxom gave evidence that when Votano had approached their table, he said to her, "How are you going gorgeous" and she asked him to leave. She did not see the fight in the hotel. 25 It was submitted on the appeal that the evidence was insufficient to support a finding beyond reasonable doubt that the appellant had deliberately struck Mr. Votano on the left side of the face with the glass. Whilst it was not conceded the evidence was sufficient to support an inference that the appellant had struck Mr. Votano on the left side of the face, the prime issue on appeal concerned whether the evidence was such as to permit beyond reasonable doubt the finding that the appellant had in so struck Mr. Votano deliberately using the glass or had deliberately used the glass subsequently, to cause the injury Mr. Votano suffered. 26 It was also contended that in the circumstances outlined in the evidence, the evidence was not capable of excluding the reasonable possibility that the appellant acted in self-defence. As to this latter contention, I see little room for the application of the doctrine of self-defence in the event that it was concluded the appellant had deliberately struck the victim with the glass as the Crown case contended. Having regard to the conclusions I have otherwise reached, however, it is not necessary for me to turn to that matter. 27 It was contended on behalf of the Crown that it was open to the jury to be satisfied beyond reasonable doubt on the evidence to which I have referred that the appellant deliberately struck Mr. Votano on the face with the glass. It was contended that the jury was entitled to reject the appellant's account and that of Amanda Goodwin such that those accounts would not even throw doubt upon what was asserted to be positive clear and persuasive proof in the prosecution case, this, notwithstanding that it is apparent from the account of the evidence I have already given that there is some support in some of that evidence in the prosecution case for their account of a stand up fight involving the turning over of a table and the breaking of glasses as the appellant and Ms. Goodwin referred to. 28 The Crown drew our attention to the regard the court must have to the role of the jury as the body entrusted with the primary responsibility of determining guilt, having seen and heard the witness (Chamberlain v. The Queen (No. 2) (1984) 153 CLR 521; M v. The Queen (1994) 181 CLR 487 at 493; Regina v. Martin [2002] NSWCCA 290). 29 The relevant tests have been posited in the decision in M (supra) where there appears at 493-495 in the judgment of Mason, CJ., Deane, Dawson and Toohey, JJ.:- "Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations. … In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty." 30 The principles in relation to the setting aside of a conviction for the existence of a doubt as to the guilt of the accused as enunciated in M (supra) were reviewed by Giles, JA. with whom Sully and Levine, JJ. agreed in the Court of Criminal Appeal in Regina v. Bikic [2002] NSWCCA 227 at [260]-[270], albeit in the context of contended fresh evidence. 31 In Regina v. Markuleski (2001) 52 NSWLR 82 at 87 to 88, Spigelman, CJ. (on this matter speaking for the whole court) said of that passage I have cited:- "The respect which the court pays to the constitutional role of the jury was emphasised in M v. The Queen (1994) 181 CLR 487 at 493, in a passage referred to with approval in Jones v. The Queen (1997) 191 CLR 439 at 451:-

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