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26
Court of Criminal Appeal 15 April 2011

Blackwell v Regina

[2011] NSWCCA 93

Also reported as (2011) 81 NSWLR 119
Assault & violence
CRIMINAL LAW WRONG DIRECTION ON ALTERNATIVE COUNT WHETHER MISCARRIAGE OF JUSTICE CONSTRUCTION OF MALICE MENTAL ELEMENT OF RECKLESSNESS MISCARRIAGE OF JUSTICE

Citation: Blackwell v Regina [2011] NSWCCA 93
Court: Court of Criminal Appeal, New South Wales
Date: 15 April 2011
Judges: Beazley JA (majority); James J and Hall J (concurring in part)

Background

The appellant was convicted by a jury in December 2008 of maliciously inflicting grievous bodily harm with intent, contrary to section 33(1)(b) of the Crimes Act 1900. The offence carries a maximum penalty of 25 years imprisonment. The trial judge sentenced the appellant to a total term of nine years with a six-year non-parole period.

The charges arose from an incident in the early hours of 13 October 2007 at a Sydney hotel, when the victim was struck in the face with a glass that shattered and caused the permanent loss of his left eye. The prosecution case rested on eyewitness identification evidence, DNA evidence linking the appellant to the scene, CCTV footage, and an admission the appellant made to the hotel proprietor shortly after the incident.

The central factual dispute at trial was identity. The appellant gave evidence denying he struck the victim, and in cross-examination said he had no memory of any such incident. At trial, the Crown also relied on an alternative count framed under section 35 of the Crimes Act, which is a lesser offence not required to be stated on the indictment.

  • Whether the trial judge committed a miscarriage of justice by directing the jury on an alternative count framed in terms that did not accurately reflect the elements of the offence as it stood at the time of the alleged conduct.
  • Whether the trial judge's directions on the order in which the jury should consider the principal charge and the alternative count were adequate.
  • Whether the jury's verdict of guilty on the principal charge was unreasonable or unsupported by the evidence, including in light of evidence of the appellant's intoxication.

Decision

Ground 1(a): Wrong alternative count directed to the jury

The majority (Beazley JA) found that the trial judge directed the jury on an alternative count framed in terms that reflected the law as amended by the Crimes Amendment Act 2007, rather than as it applied at the time of the alleged offence in October 2007. This was a significant error. The mental element described to the jury for the alternative offence was therefore incorrect for the relevant period.

Beazley JA held that leaving a wrong alternative count to the jury constituted a breach of procedural fairness of a significant kind and amounted to a miscarriage of justice. The appellant had been denied a properly constituted alternative for the jury's consideration. This ground succeeded, and the conviction was quashed with a new trial ordered.

Ground 2: Unreasonable verdict

Despite allowing the appeal on the procedural ground, the majority also addressed whether the verdict was unreasonable or unsupported by the evidence. The Crown's case included direct eyewitness testimony, independent identification, DNA evidence, CCTV footage, and the appellant's own admission. Beazley JA found it was open to the jury to convict on the principal charge, notwithstanding evidence of the appellant's intoxication, which went to the mental element. The verdict was not unreasonable on this basis.

Hall J (dissenting on the outcome)

Hall J reached the opposite conclusion on the miscarriage of justice question. His Honour considered the misdirection on the alternative count had no practical significance in the circumstances and concluded that the evidence established beyond reasonable doubt that the appellant intentionally inflicted grievous bodily harm with the requisite intent. On that basis, Hall J would have dismissed the appeal.

Orders Made

  • Appeal allowed.
  • Conviction quashed and new trial ordered.

Key Takeaways

  • A trial judge's decision to leave an alternative count to the jury framed in legally incorrect terms (including a wrong mental element) constitutes a breach of procedural fairness of a significant kind and can amount to a miscarriage of justice.
  • Under section 35 of the Crimes Act 1900 as it applied before the Crimes Amendment Act 2007 amendments, the relevant mental element for the alternative offence of maliciously inflicting grievous bodily harm required careful attention to the state of the law at the time of the alleged conduct, not the law at the time of trial.
  • A finding that a miscarriage of justice has occurred does not automatically mean the evidence was insufficient to support conviction on the principal charge. The Court of Criminal Appeal separately assessed the strength of the Crown's case and confirmed it was open to a jury to convict.
  • Where an appellant's only evidence as to mental state is an absence of memory, and the prosecution case rests on direct eyewitness accounts, DNA evidence, and an admission, the cogency of that Crown case may remain unaffected by trial errors going to alternative counts.
  • The majority and dissent in this case illustrate the contested boundary between a procedural error that warrants a new trial and one that, viewed against the totality of the evidence, produces no substantial miscarriage of justice.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 33(1)(b), 35
- Crimes Amendment Act 2007 (NSW)
- Criminal Appeal Act 1912 (NSW)
- Criminal Appeal Rules

Cases
- Andrews v The Queen [1968] HCA 84; 126 CLR 198
- Banditt v R [2005] HCA 80; 224 CLR 262
- Bombardieri v R [2010] NSWCCA 161
- Bullard v The Queen [1957] AC 635
- Cutter v The Queen [1997] HCA 7; 143 ALR 498
- Gillard v R [2003] HCA 64; 219 CLR 1
- Gilbert v R [2000] HCA 15; 201 CLR 414
- M v The Queen [1994] HCA 63; 181 CLR 487
- Pemble v The Queen [1971] HCA 20; 124 CLR 107
- R v Caldwell [1982] AC 341
- R v G [2004] 1 AC 1034
- R v George [2004] NSWCCA 247; 149 A Crim R 38
- Heron v Regina [2006] NSWCCA 215
- Knight v R [1992] HCA 56; 175 CLR 495