SHARP v R

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.