Citation: Chisari v Regina (No 2) [2006] NSWCCA 325
Court: NSW Court of Criminal Appeal
Date: 12 October 2006
Judge(s): Grove J, Kirby J, Hislop J
Background
The appellant was convicted in the District Court of maliciously inflicting grievous bodily harm with intent, following an incident on 1 September 2003 at a service station on Parramatta Road, Haberfield. A police constable had attended to oversee the towing of a vehicle blocking the service station entrance. When the appellant arrived, he started the vehicle, reversed, and then drove it forward toward the constable, who had no escape route and leapt onto the bonnet. The constable sustained a displaced fracture of his right wrist requiring surgery, with a prognosis that the wrist would never fully recover.
The trial judge, Puckeridge DCJ, sentenced the appellant to a non-parole period of 14 months and a balance term of 18 months. A separate Crown appeal against that sentence had already been determined by a differently constituted Court of Criminal Appeal, which substituted a sentence of five years total (two years six months non-parole, two years six months balance). The present appeal, lodged by the appellant in person, challenged the conviction itself.
The appellant argued at trial that the constable had jumped onto the vehicle of his own accord while holding a drawn firearm, and that any injury was not the appellant's fault. The jury rejected that account.
Legal Issues
- Whether the verdict was unreasonable, unsafe, or could not be supported on the evidence
- Whether the trial judge erred in various rulings, including any refusal to discharge the jury
- Whether photographic and forensic evidence was properly assessed, particularly regarding tyre marks and damage to the vehicle
- Whether there were conflicting witness accounts that undermined the conviction
- Whether the constable's credibility was so compromised as to render the verdict unsafe
- Whether the jury was properly constituted throughout the trial (the appellant citing an entitlement to 12 jurors)
- Whether transcript material was improperly supplied to the jury during deliberations
- Whether a direction on lies (a so-called "Edwards direction") was required
Decision
The Court addressed each of the appellant's ten grounds in turn and dismissed all of them. On ground 3, concerning the alleged refusal to discharge the jury after "sensitive information" was revealed, Grove J found that no application to discharge had in fact been made by trial counsel and therefore no refusal had occurred. The ground was not made out on the record.
On grounds 4 and 10, relating to photographic evidence of vehicle damage, Grove J accepted that photographs taken before and after the incident showed new damage to the offside front guard. However, the Court noted that this evidence was available to the jury for assessment. Even if the damage suggested the constable was struck tangentially rather than head-on, that did not assist the appellant, as the constable had jumped onto the bonnet in response to imminent danger the appellant had created. Drawing on the principle in Royall v The Queen, the Court noted that liability can attach where a victim takes evasive action in response to a well-founded apprehension of danger.
On grounds 5 and 6, concerning alleged conflicts in witness evidence and the constable's credibility, the Court confirmed these were quintessentially jury questions. The jury had the benefit of seeing and hearing the witnesses, and there was no demonstrated legal error in how the trial proceeded. Similarly, on the question of an Edwards direction concerning lies, the Court found the Crown had not relied on lies to "establish guilt" in the relevant technical sense; it had simply invited the jury to disbelieve the appellant's account, which required no special direction.
On ground 1, the primary ground challenging the verdict as unreasonable, the Court applied the test from M v The Queen: whether it was open to the jury to be satisfied of guilt beyond reasonable doubt on the whole of the evidence. Grove J concluded that it was not only open but plainly so, and Kirby J and Hislop J agreed. The appeal was dismissed.
Orders Made
- Extension of time for filing the notice of appeal against conviction granted.
- Conviction appeal dismissed.
Key Takeaways
- In dismissing the appeal, the Court of Criminal Appeal confirmed that challenges to credibility and conflicts in witness evidence are matters for the jury, and an appellate court will not interfere merely because a different conclusion was arguable.
- A conviction for maliciously inflicting grievous bodily harm does not require proof of direct physical impact; liability can arise where a victim takes evasive action in response to danger created by the defendant, consistent with the principle in Royall v The Queen.
- No error was established in the trial judge's conduct of proceedings, including the supply of transcripts to the jury during deliberations, which is expressly authorised by s 55C of the Jury Act 1977.
- An Edwards direction (warning the jury about using lies to establish guilt) is not required simply because the Crown invites disbelief of a defendant's account; it is only required where the Crown positively relies on a proven lie as circumstantial evidence of guilt.
- Sufficient evidence existed for the jury to be satisfied beyond reasonable doubt, and the Court applied the M v The Queen standard in confirming that the verdict was plainly open on the evidence as a whole.
Legislation and Cases Referenced
Legislation
- Criminal Appeal Act 1912 (NSW)
- Evidence Act 1995 (NSW), s 33
- Jury Act 1977 (NSW), s 55C
Cases
- Brownlee v The Queen (2001) 207 CLR 278
- Edwards v The Queen (1993) 178 CLR 193
- M v The Queen (1994) 181 CLR 487
- Mraz v The Queen (1955) 93 CLR 493
- R v Chisari [2006] NSWCCA 19
- Royall v The Queen (1990) 172 CLR 378
- Wu v The Queen (1999) 199 CLR 99