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[2012] NSWCCA 134
Court of Criminal Appeal (NSW)
2012-05-07
Whealy JA, Hidden J, Schmidt J
Original judgment source is linked above.
Judgment 1WHEALY JA: I agree with Hidden J and the order he proposes. 2HIDDEN J: The appellant, Nicholas Stafford Sharp, was tried in the District Court with two other men, Lee Frederick Funnell and Dean William Phelps, for offences arising out of an incident which took place at Byron Bay on 7 March 2009. The appellant was charged with causing grievous bodily harm to Dallas Arnold with intent to do so (s 33 of the Crimes Act 1900) and with affray. He was found guilty of the first of those offences but acquitted of the second. He appeals against his conviction of that first count. 3The only issue on that count was whether the intent to cause grievous bodily harm was established. Indeed, when arraigned on that count, the appellant pleaded not guilty but guilty of recklessly causing grievous bodily harm (s 35 of the Crimes Act). The Crown prosecutor did not accept that plea in satisfaction of the count. 4The appellant contends that the verdict of guilty was unreasonable, and that the trial judge failed properly to direct the jury about the element of intent. Given the limited issue that was in contest, a brief summary of the evidence at the trial will suffice. The basis of the charges against Mr Funnell and Mr Phelps has no bearing upon the appeal, and need not be considered.
The evidence 5In the evening of 7 March 2009, the appellant was at the Beach Hotel at Byron Bay with his girlfriend, Lauren Newman, Mr Funnell and Mr Phelps. The victim of the offence, Mr Arnold, was also at the hotel with some companions, including Nathan Spratt. There was an incident involving members of the two groups. It appears that something inappropriate was said about Ms Newman, and there was a physical altercation involving Mr Arnold, Mr Spratt and Mr Funnell. Exactly what happened is not clear, but nothing turns on it for present purposes. Whatever it was, it seems that the appellant did not see it but was told about it. 6Some time later, the appellant, Mr Funnell and Mr Phelps were approaching the Great Northern Hotel. They saw Mr Arnold and Mr Spratt outside the hotel and approached them. What then happened appears to have sprung from the appellant's belief that Mr Arnold had been involved in the earlier incident and, in particular, had made the remark about Ms Newman. He approached Mr Arnold and punched him to the head. He delivered further punches to the head and Mr Arnold slumped towards the ground. Mr Arnold tried to get back up on his feet, holding onto the door of the hotel. The appellant pulled him away and threw him to the ground. Again he tried to get up but the appellant held him down, continuing to punch him and kneeing him. Mr Arnold managed to get to his feet and stumbled away from the appellant, but the appellant delivered more punches and pulled him along the ground. Mr Arnold fell to the ground and the appellant stomped on his head. 7What I have described is the effect of what can be seen on CCTV footage which was in evidence, together with the accounts of a number of eye-witnesses. Some of the witnesses described the appellant kicking Mr Arnold while he was on the ground, but that is not apparent from the CCTV footage. Some of the witnesses also said that at one stage Mr Arnold attempted to punch the appellant or, at least, shaped up to him, but that also cannot be seen on the footage. 8More importantly, the stomping on Mr Arnold's head emerges only from the eye-witness evidence because the two men were out of the range of the CCTV cameras at that point. Several of the witnesses heard the appellant say something about his girlfriend at the time of the stomping action. In particular, one witness said that immediately after the stomp the appellant said something like, "Don't come near me or my girlfriend", while another said that immediately before the stomp he said something like, "Don't talk to my missus like that." Before his head was stomped on several of the witnesses said that he appeared to be unconscious, and one observed him to be bleeding from the head. 9As will be seen, the eye-witness evidence about the stomping is important to the issues in the appeal. Six eye-witnesses said that the stomp was to the left side of Mr Arnold's head, variously described as being to the area of the temple or to the back or side of the head in the area of the left ear. Another witness agreed in cross-examination that it "could have been" near the left eye, adding that he thought that "it was in the face region." Four witnesses described the stomp as being to the top or side of the head, without specifying whether it was towards the left or the right. One witness described it as being to the centre of the head. 10Mr Arnold suffered a significant brain injury as a result of the incident and had no recollection of it. Medical evidence established that he had sustained a left-sided maxillary fracture which was minimally displaced. More importantly, he had also sustained a right temporal skull fracture which extended through to the tempora mandibular joint on that side. This was the major injury, and it was not in dispute that it amounted to grievous bodily harm. A doctor who examined Mr Arnold when he was taken to the emergency department at Byron Bay Hospital was of the opinion that his injuries "were not inconsistent with his head suffering a severe blunt force trauma while lying on a hard surface." 11The causation of the injuries was examined more closely by Dr Richard Byron Collins, a forensic pathologist who was called in the defence case. He did not see Mr Arnold but he had access to the medical records. He agreed that the injuries were the result of blunt force trauma, noting that there were two areas of impact. The left-sided maxillary fracture, he said, was consistent with a punch. The focus of his evidence was the right-sided skull fracture, leading to a contrecoup injury to the brain on the left side. The effect of his evidence was that these injuries would have been the product of an impact to the right side of the head. They could have been caused by a blow to that side of the head or by Mr Arnold having struck his head on that side when he fell to the ground. They would also be consistent with a stomp to the right side of the head, but he noted that that was not the evidence of any of the witnesses. 12Asked in cross-examination whether they could have been caused by the right side of the head coming into contact with the ground through force being applied to the left side, he said that they could "in general terms" but was of the view that that was not the case in this instance. If that had occurred, he said, one would expect to see significant damage to the skin or the bony structures underneath it on the left side but, as he understood it, there was no evidence of any injury on that side. In fact, the doctor in the emergency department at the hospital noted "significant bruising and swelling" to the left side of Mr Arnold's face. The right side, she noted, was very distorted. She said in evidence that "his entire face seemed misaligned but the right side was particularly misaligned." She described the right side as "stoved in." 13The appellant gave evidence which it is not necessary to examine in any detail, given the way in which the appeal was argued. It is sufficient to say that he admitted having assaulted Mr Arnold. He acknowledged having been the initial aggressor, but his description of what then ensued amounted to a fight between the two of them in which he did not indulge in the level of violence which the Crown alleged. In particular, he denied having stomped on Mr Arnold's head. He said that the incident ended when Mr Arnold fell to the ground while he was holding onto him. He fell with Mr Arnold and he "stepped out" in the process, so that his foot accidentally came into contact with the top of Mr Arnold's head.
Addresses and Summing-Up 14At the trial the evidence of the stomping loomed large on the question of the intent to cause grievous bodily harm. In discussion after the Crown case closed, the Crown prosecutor (who did not appear in this court) referred to evidence of "a short break in the assault on Mr Arnold" before the appellant stomped on his head. She also referred to the evidence of what the appellant said about his girlfriend, and said that "the Crown's case is that the words that were spoken at the time, the break in the assault that led to Mr Arnold being on the ground during that break or shortly before the stomping, Mr Sharp formed the intent to inflict grievous bodily harm." At that stage, of course, Dr Collins had not given his evidence. 15In her final address to the jury the Crown prosecutor continued to place emphasis upon the stomp on the question of the intent. At one point she referred to arguments she had put the previous day and continued: "What the issue for your consideration is is the intent and yesterday ... the Crown attempted to show you that there were certain actions carried out by Mr Sharp that can only constitute and show that in fact he was intending to do such harm to Mr Arnold. That primarily comes down to the actions that were clearly witnessed by independent witnesses who all say quite vehemently and quite strongly that there was a stomping action." A little later, after taking the jury to part of her cross-examination of the appellant, she referred to his characterisation of the incident as a fight and, in particular, his evidence that he had put Mr Arnold on the ground and kneed him "because he guessed the fight would be over." She then said to the jury: "The fight would be over, ladies and gentlemen, as soon as Mr Arnold was taken unawares and hit to the side of his head as demonstrated in that close-circuit television footage. He did not stand a chance you might think, he was taken by surprise from behind, dragged to the pavement, pummelled and to finish him off he was witnessed by the witnesses that you heard stomping on his head and that is not only dramatic, it clearly demonstrates that this man had an intention to do maximum harm to Mr Arnold." 16In the course of the final address of counsel for the appellant at the trial (who also did not appear in this court), there was discussion about whether the Crown should be confined to a case that it was the stomping which caused the grievous bodily harm and that it was at or about that time that the appellant formed the requisite intent. The trial judge ruled that the Crown was not so confined, and that he would direct the jury that it was a matter for them to decide how the serious injury was caused and whether or not the relevant intent had been proved. No complaint is made about that ruling in this court. 17In putting the appellant's case to the jury, trial counsel argued that what occurred before the alleged stomp was a fair fight and, even if the jury were satisfied that a punch had caused the grievous bodily harm, they could not be satisfied that it was accompanied by an intent to cause that level of harm. If they were satisfied that the appellant deliberately stomped on Mr Arnold's head, he argued, they might conclude that he had the requisite intent at that time but could not be satisfied that it was that action which caused the grievous bodily harm. 18In directing the jury on the question of intent, his Honour had this to say: "Now what the position here is is first of all, the evidence in general talks about some punching, there may or may not be evidence that satisfies you about kneeing or any more other things and then the Crown in particular has concentrated on what is described as the alleged stomping. The defence in particular, a reliance on Dr Collins have said well, the stomping we say cannot have caused the head injury and the issue they say is well in a single punch, you cannot really say that that would be with the requisite intention. ... ... you are going to have to decide on all the evidence did that arise as the Crown has principally maintained from what they call the stomping, and you have to bear in mind the doctors' evidence about that, Dr Collins who says his view is because there is no particular injury on the left side, it cannot be the stomping, but he said it could well be the punch, that might have caused it. Now that of course is for you to resolve and decide what you are satisfied beyond reasonable doubt about because once you have decided the mechanism of how it happened, that will then be the background against which you decide whether the intent has been made out. The Crown as I say have emphasised the stomping in saying coupled with what was being said according to the witnesses if you accepted if there was a stomping that caused that, well that really speaks for itself and makes the intent clear. They did not address you at all about what would be in anybody's mind with a punch that could have cracked somebody's skull in the way described by Dr Olsson so you do not have that assistance. Mr Harrison on behalf of the accused says it is a bit difficult to see that sort of intent in one punch; that is entirely a matter for you, you decide. If for instance you say, well we are not satisfied the stomp caused the cracked skull, we prefer the view that it was the punch, you then go on to consider against that background whether the intent has been made out."
19In this court the appellant was represented by Mr Odgers SC, who argued two grounds: firstly, that the verdict was unreasonable and, secondly, that the trial judge failed properly to direct the jury about the alternative basis on which the first count might be proved. These grounds are linked, and it is convenient to deal with them together. 20Relying on the first ground, Mr Odgers sought orders that the verdict on count 1 be quashed and that a verdict of guilty of reckless wounding be substituted. He did not refer to the appellant's evidence, but was content to base his arguments on the evidence in the Crown case and the inferences to be drawn from it. 21He submitted that the Crown's case on the intent to cause grievous bodily harm had been squarely founded upon the evidence of the stomping, alleging that it was at that point that the intent was formed. Consistently with the case for the appellant put at the trial, he acknowledged that that inference was available but, in the light of the evidence of Dr Collins, the jury could not reasonably have been satisfied that it was at that point that the grievous bodily harm was caused. He noted that Dr Collins' evidence that the serious injury would have to have been caused by impact to the right side of the head was not challenged by the Crown. He relied upon the fact that several of the eye-witnesses said that the stomp was to the left side of the head and none of them said that it was to the right side. 22He also noted that, on Dr Collins' evidence, the serious injury could have been caused by a punch to the right side of Mr Arnold's head or that side of his head striking the ground. Again he argued that, on the Crown case, the intent to inflict grievous bodily harm had not been formed at that stage. He added that, in any event, the inference of an intent to inflict grievous bodily harm could not readily be drawn simply from punching. As he put it in written submissions, the reasonable possibility could not be excluded that the appellant intended only to fight Mr Arnold, without the requisite intent. He submitted that throwing punches at another man, even forceful punches directed to the head, "does not normally permit an inference beyond reasonable doubt that there is an intention to inflict grievous bodily harm." 23He acknowledged that an argument might be advanced that there was an intention to inflict grievous bodily harm at the time of the stomp and that, given the close proximity in time between that action and the punching, it could reasonably be inferred that there was such an intention from the outset of the incident. He added that no such argument was put at the trial. In any event, he argued, the evidence of Dr Collins conveys that the stomp was not as forceful as the witnesses suggested. It was not the source of the grievous bodily harm and, accepting that it was delivered to the left side of the head, there was only bruising and swelling on that side of the face. He also noted that it was immediately before the stomping that the appellant spoke to Mr Arnold, suggesting that he was unaware that Mr Arnold might have been unconscious and seriously injured. Even if it be accepted that the stomp was delivered with an intent to cause grievous bodily harm, he said, it was not implausible that the intent was formed only at that point and that the appellant did not have that intent when he initiated the assault. 24It was these same considerations which were the basis of the second ground, challenging the adequacy of the trial judge's directions. As I understand it, the reference in that ground to "the alternative basis" on which the offence might have been proved was to the proposition that the jury might find that the grievous bodily harm was occasioned by a punch, or Mr Arnold falling to the ground, at a time when the appellant had the requisite intent. Mr Odgers submitted that the directions failed to convey to the jury that to find the appellant guilty they needed to be satisfied of an intention to cause grievous bodily harm at the time of the act or acts which caused that harm. He argued that they could have been left with the impression that it was sufficient if they found that the appellant caused grievous bodily harm and that, at some time during the entire incident, he had the necessary intention. 25I am persuaded by the arguments of the Crown prosecutor in this court that neither ground is made out. As to the first ground, it seems to me that it was open to the jury to conclude that the stomping action caused the grievous bodily harm. Plainly enough, this was a violent and fast moving incident in which it is unlikely that the witnesses would have a precise recollection of the exact portion of Mr Arnold's head to which the stomp was delivered. Even if it had been delivered to the left side of the head, the serious injury could still have resulted from the forceful contact of the right side of the head with the ground. Dr Collins' opinion that this was not the case appears to have been based upon the erroneous assumption that there was no injury to the left side of the face. In fact, as I have said, there was. 26However that may be, I find it unnecessary to reach a conclusion whether it was the stomp which caused the serious injury. In the way in which the case was left to the jury, both in final addresses and in the summing-up, that finding was not essential to establishing guilt because it was not the Crown case that the intent to cause grievous bodily harm was formed only at that point. So much is apparent from the second passage of the Crown prosecutor's address quoted at [15] above. While the stomp was relied upon as powerful evidence that the appellant had the requisite intent, that passage conveys a submission by the prosecutor that the intent may well have been formed earlier in the incident or, indeed, from the outset. 27In my view, there is an air of unreality about focusing upon a particular act of the appellant during the incident and determining whether he had the requisite intent at the time of that act. On the evidence in the Crown case, this was an attack of some ferocity from the moment it was initiated, involving repeated punches to Mr Arnold's head and culminating in the stomping action. It was a brief episode of continuous violence. What can be seen on the CCTV footage occupies less than half a minute and, no doubt, the stomp was delivered a very short time thereafter. It was well open to the jury to conclude that the appellant intended to cause grievous bodily harm throughout the incident, and, in that event, it was unnecessary to determine precisely which act or acts of his caused the serious injury. 28Viewing the matter in that way, it was also unnecessary for the trial judge to direct the jury that they had to decide which act caused the grievous bodily harm and determine whether that act was accompanied by the requisite intent. Yet, in my view, that was the effect of his Honour's directions. In the passage from the summing-up which I have quoted at [18], his Honour referred to the issue of whether the grievous bodily harm was the result of the stomp or of a punch, clearly in the context of directing the jury about the requisite intent. At the conclusion of that passage he told the jury that it was entirely a matter for them, saying that if they were not satisfied it was the stomp but were satisfied it was the punch, they would "then go on to consider against that background whether the intent has been made out." Later in the summing-up, in the course of summarising the Crown case, his Honour said that the jury would "have to look at what mechanics on this night do you find beyond reasonable doubt caused the injury, was it the punch, was it the stomping, that is an issue for you and it is against that basis you work out the issue of the intent." 29These directions were adequate and, on the view of the matter which I have expressed, were more than was required. No redirection on the issue was sought by counsel for the appellant at the trial, and nothing in his Honour's directions could be said to have given rise to a miscarriage of justice. 30I would dismiss the appeal. 31SCHMIDT J: I agree with Hidden J.
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