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Court of Criminal Appeal 2 July 2012

Kahl v R

[2012] NSWCCA 136

Assault & violence
CRIMINAL LAW APPEAL CONVICTION WHETHER PROVISO SHOULD BE APPLIED APPEAL UPHELD CONVICTION QUASHED

Citation: Kahl v R [2012] NSWCCA 136
Court: Court of Criminal Appeal, NSW
Date: 2 July 2012
Judge(s): McClellan CJ at CL; Garling J; Adamson J

Background

The appellant was convicted by jury of recklessly inflicting grievous bodily harm, contrary to s 35(2) of the Crimes Act 1900. The charge arose from an altercation in the early hours of New Year's Day 2010 in Dorrigo, in which the appellant punched the complainant once in the face. The complainant fell backwards, struck his head on the roadway, and suffered grievous bodily harm. There was no dispute at trial that the injury met that threshold.

At trial, the appellant's primary defence was self-defence. He also put an alternative case that the punch was an instinctive, reflexive blow delivered without any intention to cause harm. The Crown called 21 witnesses; the appellant called none, though a recording of his police interview was tendered.

Two days after the jury returned its verdict, the Court of Criminal Appeal delivered judgment in Blackwell v R [2011] NSWCCA 93. That decision clarified the mental element required for recklessness under s 35(2), creating a direct conflict with the directions the trial judge had given the jury in this case.

  • Whether the trial judge's direction on recklessness was legally correct in light of Blackwell v R
  • Whether, despite that error, the proviso (the principle that a verdict can be upheld notwithstanding a misdirection if no substantial miscarriage of justice occurred) should be applied to preserve the conviction
  • Whether, alternatively, the Court should enter a verdict of acquittal rather than order a retrial

Decision

The respondent (the Crown) conceded that the trial judge's direction was erroneous. The judge had directed the jury that the Crown needed to prove the appellant realised his punch might cause "some form of bodily injury." Blackwell v R established that recklessness under s 35(2) requires proof that the accused realised his actions might cause "grievous bodily harm" or "really serious injury." The higher threshold was never put to the jury.

McClellan CJ at CL, with whom Garling and Adamson JJ agreed, held that the conviction could not stand. The jury had simply never considered whether the appellant foresaw the possibility of really serious injury. The Court was not persuaded that the evidence, viewed as a whole, compelled the conclusion that the appellant was nonetheless guilty on the correct legal standard.

On the question of whether a verdict of acquittal should be entered instead of a retrial being ordered, the Court declined. The evidence was such that a properly directed jury could reasonably conclude that, in delivering a punch to the complainant's jaw with sufficient force to knock him over, the appellant may have appreciated the risk of causing grievous bodily harm or really serious injury. That factual question remained open for a jury to determine.

Orders Made

  • Appeal upheld
  • Conviction for the offence contrary to s 35(2) of the Crimes Act 1900 quashed
  • New trial ordered

Key Takeaways

  • Under s 35(2) of the Crimes Act 1900, the Crown must prove the accused realised his actions might cause "grievous bodily harm" or "really serious injury." A direction requiring only foresight of "some form of bodily injury" is a legal error, as confirmed in Blackwell v R.
  • A misdirection on a core element of the offence will not be cured by the proviso where the jury never evaluated the evidence against the correct legal standard.
  • The Court of Criminal Appeal declined to substitute a verdict of acquittal where the evidence, properly assessed, left open a finding of guilt on the correct test. A retrial rather than acquittal is appropriate in such circumstances.
  • The concession by the Crown that a direction was erroneous does not automatically resolve the appeal in favour of the accused. The Court must separately consider both the proviso question and, if applicable, whether acquittal rather than retrial is warranted.
  • Factual questions about what a defendant subjectively foresaw at the moment of an act of violence remain quintessentially matters for a jury, not an appellate court.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 35(2) (recklessly inflicting grievous bodily harm)

Cases:
- Blackwell v R [2011] NSWCCA 93