Citation: Quach v R [2008] NSWCCA 284
Court: New South Wales Court of Criminal Appeal
Date: 4 December 2008
Judge(s): Allsop P, Johnson J, Price J (judgment delivered by Price J)
Background
The appellant was convicted by a jury in the District Court of maliciously inflicting grievous bodily harm with intent to do grievous bodily harm, contrary to s 33 of the Crimes Act 1900. The charge arose from an incident during an amateur soccer match on 14 May 2005 at Algie Park, Haberfield, in which a volunteer linesman suffered severe injuries including a broken nose, fractured cheekbone, fractured eye socket, damaged retina, and multiple damaged teeth.
The Crown alleged that the appellant, who wore jersey number 10 for his team, delivered a single powerful kick to the linesman's face while the linesman was on all fours on the ground attempting to defuse a brawl between players. The appellant's case at trial centred on identity: he denied being the person who delivered the kick, and in correspondence he pointed to another player as the true perpetrator.
The appellant was sentenced to imprisonment served by way of periodic detention, with a non-parole period of two years. He appealed against his conviction on two grounds, both directed at alleged deficiencies in the trial judge's directions to the jury.
Legal Issues
- Whether the trial judge adequately directed the jury on the distinct mental elements applicable to the two charged offences: maliciously inflicting grievous bodily harm with intent (s 33) and the alternative of maliciously inflicting grievous bodily harm (s 35 of the Crimes Act 1900)
- Whether the trial judge erred by failing to direct the jury that identifying the appellant as the person who kicked the victim did not, by itself, automatically establish guilt of either offence
Decision
Ground 1: Adequacy of directions on mental elements
Price J examined the trial judge's directions in detail and concluded they were adequate. The judge had directed the jury on the elements of each offence, including the relevant mental states, and had explained the distinction between the s 33 offence (which requires proof of intent to do grievous bodily harm) and the s 35 alternative (which does not require that specific intent). The appellant conceded that if any error existed, it arose from a failure to distinguish the two offences sufficiently rather than from an absence of direction on intent altogether.
The Court found that, read as a whole, the summing-up adequately communicated the differing mental elements to the jury. The appellant's single-blow submission, that the jury could not readily infer the requisite intent from one kick, was considered but did not persuade the Court that the directions were legally inadequate. Ground 1 failed.
Ground 2: Directions on the relationship between identity and guilt
This ground was not raised at trial, so leave was required under Rule 4 of the Criminal Appeal Rules. The Court granted leave to raise it but nonetheless rejected the ground on its merits.
Although the trial judge had described identity as "the real issue" in the case, consistent with how defence counsel had framed the trial, the judge had also explicitly directed the jury that it must examine all elements of the charges and that the Crown was required to prove each and every element beyond reasonable doubt before guilt could be found. The Court was satisfied the jury could not have understood that a finding on identity alone was sufficient to establish guilt of either offence. Ground 2 also failed.
Orders Made
- Appeal dismissed
Key Takeaways
- A summing-up must be read as a whole when assessing whether directions on the mental elements of alternative offences were adequate; isolated passages are not assessed in isolation.
- Where the trial judge correctly identifies the elements of each offence and repeatedly instructs the jury that all elements must be proved beyond reasonable doubt, directions will generally be sufficient even if they do not exhaustively elaborate on the distinction between intent-based and non-intent-based variants of the same offence.
- In dismissing the appeal, the Court of Criminal Appeal confirmed that a judge's description of identity as "the real issue" in a trial does not, standing alone, constitute a misdirection, provided the jury is also told it must assess all elements of the charged offences.
- Leave may be granted under Rule 4 of the Criminal Appeal Rules to raise a ground not taken at trial, but a grant of leave does not guarantee success on that ground.
- Under ss 33 and 35 of the Crimes Act 1900, the offences of maliciously inflicting grievous bodily harm with and without intent are distinct, and trial judges are required to direct juries on the differing mental elements of each where both are left to the jury.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 33, 35, 35(1)(b)
- Evidence Act 1995 (NSW), s 191
- Criminal Appeal Rules, r 4
Cases
- R v Stokes & Difford (1990) 51 A Crim R 25
- The Queen v Wheeler (1844) 1 Cox CC 106
Other
- Criminal Trial Courts Bench Book