Citation: Kaufusi v R [2005] NSWCCA 434
Court: NSW Court of Criminal Appeal
Date: 14 December 2005
Judge(s): McClellan CJ at CL, Hislop J, Rothman J
Background
The appellant was convicted in the District Court of maliciously inflicting grievous bodily harm following an incident in a Sydney restaurant car park in November 2002. The appellant and his girlfriend had an argument that escalated into a physical altercation, during which the victim sustained a partial loss of her ear.
Multiple independent witnesses, including a treating physician and a bystander who assisted the victim, gave evidence that the victim told them at the time that the appellant had bitten off part of her ear. Blood was found on the appellant's clothing, in the car, and at the car park. The severed portion of the ear was never recovered.
At trial, the victim gave evidence for the first time that the ear had been severed by broken car window glass when she fell during the struggle. The jury rejected that account. The appellant was sentenced to three years' imprisonment with a non-parole period of 15 months, and appealed both conviction and sentence.
Legal Issues
- Whether the trial judge erred by failing to direct the jury on self-defence, even though the appellant's counsel had expressly disavowed reliance on that defence before the summing-up
- Whether the guilty verdict was unreasonable or unsupported by the evidence, within the meaning of the relevant appellate standard
Decision
Self-defence direction: The Court found no reasonable hypothesis of self-defence arising on the evidence. The factual contest at trial was whether the appellant bit off the victim's ear or whether the injury was caused accidentally by broken glass. That contest did not raise any basis on which a jury could conclude the appellant acted in self-defence. The Court confirmed the established principle, derived from Pemble v The Queen, that a judge must direct on any defence reasonably available on the evidence, regardless of whether counsel raises it. However, that obligation only arises where the evidence actually supports the defence. Here, it did not.
Unreasonable verdict: The Court applied the test affirmed by the High Court in M v The Queen and MFA v The Queen: whether it was open to a jury, acting reasonably on the whole of the evidence and applying the criminal standard of proof, to be satisfied of guilt beyond reasonable doubt. The jury had before it inconsistent statements from the victim, independent witness testimony, and medical evidence indicating the wound was consistent with a bite and inconsistent with being caused by glass (notably the absence of glass fragments in the wound). The Court found it was plainly open to the jury to accept the independent evidence and reject the victim's trial account. No basis for appellate intervention was established.
The application for leave to appeal against sentence was not pressed, and leave was accordingly refused without further consideration.
Orders Made
- Leave to appeal against sentence refused
- Appeal against conviction dismissed
Key Takeaways
- A trial judge's obligation to direct the jury on a defence arises only where the evidence reasonably supports that defence. Where no reasonable hypothesis of self-defence appears on the facts, no direction is required, even if the broader principle from Pemble v The Queen would otherwise apply.
- Expressly disavowing reliance on a defence at trial is a relevant factor, but the Court of Criminal Appeal confirmed the disavowal did not extinguish the inquiry: the question remained whether the evidence itself raised the defence.
- Under the M v The Queen and MFA v The Queen standard, a verdict is unreasonable only if it was not open to a reasonable jury, on the whole of the evidence, to be satisfied of guilt beyond reasonable doubt. Mere inconsistency in witness accounts does not automatically render a verdict unreasonable.
- Where a jury is presented with conflicting versions from a complainant and independent witnesses, it is entitled to prefer the independent evidence. The Court of Criminal Appeal will not intervene simply because the complainant gave different evidence at trial.
- In dismissing the appeal, the Court reinforced the special respect accorded to jury verdicts on contested factual questions, balanced against the appellate mechanism available under s 6(1) of the Criminal Appeal Act 1912 to guard against conviction on unreasonable or unsupported evidence.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW)
- Criminal Appeal Rules (NSW)
- Criminal Appeal Act 1912 (NSW), s 6(1)
Cases
- Pemble v The Queen (1971) 124 CLR 107
- Mansini v DPP [1942] AC 1
- Kwaku Mensah v The King [1946] AC 83
- Barca v The Queen (1975) 133 CLR 82
- R v Clarke (1995) 78 A Crim R 226
- R v Abusafiah (1991) 24 NSWLR 531
- M v The Queen (1994) 181 CLR 487
- MFA v The Queen (2002) 213 CLR 606