Citation: Davies, Larry Glenn v R [2011] NSWCCA 19
Court: NSW Court of Criminal Appeal
Date: 23 February 2011
Judges: James J (principal judgment), Hall J, Price J
Background
The appellant was tried jointly with two co-accused in the District Court before Finnane DCJ and a jury. The charges arose from an incident on 27 May 2006 at a residential property in Macksville, where the Crown alleged the three accused carried out a joint criminal enterprise involving a violent assault on two victims. The appellant was convicted of maliciously wounding a male victim with intent to do grievous bodily harm, contrary to s 33 of the Crimes Act 1900, and of a separate assault occasioning actual bodily harm on a female victim.
The assault involved the appellant and a co-accused forcing the male victim into a corner of the kitchen and striking him repeatedly with implements, including a baseball bat and a curtain rod, as well as punching him and ramming his head against a wall. The appellant did not appeal his conviction on the assault occasioning actual bodily harm charge, focusing his appeal solely on the s 33 conviction.
At trial, the appellant's primary defence was alibi: he denied being present at the scene at all. Separately, through closing address, his counsel made an alternative and subordinate submission that the Crown had not established the requisite intent to cause grievous bodily harm.
Legal Issues
- Whether the trial judge's directions to the jury on the element of intent to do grievous bodily harm under s 33 of the Crimes Act 1900 contained a material error.
- If the direction was erroneous, whether the proviso to s 6(1) of the Criminal Appeal Act should be applied in favour of the Crown, so as to dismiss the appeal despite the error.
Decision
The Court accepted that the trial judge's direction to the jury on the intent element of the s 33 offence was erroneous. The direction failed to correctly convey what the Crown was required to prove beyond reasonable doubt in relation to the accused's state of mind.
Despite that error, the Court concluded that the proviso to s 6(1) of the Criminal Appeal Act applied, meaning no substantial miscarriage of justice had actually occurred. A central factor was that the appellant's real and dominant defence at trial was alibi. The misdirection concerned an element of the offence that was entirely collateral to the principal issue the jury was asked to resolve: whether the appellant was even present at the scene.
The Court distinguished this case from R v McKnoulty (1994) 77 A Crim R 333, where the proviso was refused. In McKnoulty, the accused had conceded presence and the intent element was the central contested issue, making the misdirection directly material. Here, by contrast, the alternative submission on intent was very much a secondary argument, and the evidence supporting the intent element was strong given the nature and circumstances of the assault.
The Court also noted that this Court has on occasions applied the proviso even where there has been an omission or error in directing on an element of the offence, citing R v Gulliford as an example. All three judges agreed the appeal against conviction should be dismissed.
Orders Made
• The appeal against conviction is dismissed
• The proviso to s 6(1) of the Criminal Appeal Act is applied in favour of the Crown
Key Takeaways
- An erroneous jury direction on an element of a s 33 Crimes Act 1900 offence does not automatically result in a conviction being quashed; the proviso to s 6(1) of the Criminal Appeal Act remains available to the Crown.
- Where the misdirection relates to an element that was not genuinely in contest at trial, and the accused's principal defence was entirely separate (here, alibi), a court is more likely to be satisfied that no substantial miscarriage of justice occurred.
- The Court of Criminal Appeal distinguished R v McKnoulty, emphasising that the proviso was refused in that case because intent was the central disputed issue, not a subordinate one.
- In dismissing the appeal, the Court confirmed that R v Gulliford represents established authority for applying the proviso even where a direction on an element of the offence was deficient.
- Under s 6(1) of the Criminal Appeal Act, the strength and nature of the evidence on the misdirected element, assessed alongside the actual issues litigated at trial, remains relevant to whether the proviso applies.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 33 (malicious wounding with intent to do grievous bodily harm)
- Criminal Appeal Act (NSW), s 6(1) (proviso)
Cases:
- R v McKnoulty (1994) 77 A Crim R 333
- R v Abusafiah (1991) 24 NSWLR 531
- Ka Chung Fung v R (2007) 174 A Crim R 169
- R v Gulliford (2004) 148 A Crim R 558
- Weiss v The Queen (2005) 224 CLR 300