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Court of Criminal Appeal 17 April 2014

Griffiths v R

[2014] NSWCCA 60

Assault & violence
CRIMINAL LAW APPEAL CONVICTION RECKLESS WOUNDING S 35(4) CRIMES ACT 1900 (NSW) M V THE QUEEN [1994] HCA 63

Citation: Griffiths v R [2014] NSWCCA 60
Court: NSW Court of Criminal Appeal
Date: 17 April 2014
Judges: Simpson J at [1]; Davies J at [31]; Adamson J at [37]

Background

The appellant was convicted in the District Court at Parramatta of reckless wounding under s 35(4) of the Crimes Act 1900 (NSW) following a jury trial. The charge arose from an incident on the evening of 20 August 2011, when a birthday party descended into a violent confrontation. A 15-year-old boy (identified only as MZ) was struck in the back of the head with a wine bottle, which shattered and caused him injury.

The central issue at trial was not whether the assault occurred, but who delivered the blow. Two men were present during the altercation: the appellant and a distinctively tall man named Corey Littlewood. The Crown case was that it was the appellant who wielded the bottle. The appellant's case was, in substance, that the evidence did not establish this to the required standard.

The complication arose from a set of informal notes taken by a police officer at the hospital shortly after the incident. Those notes appeared to attribute the bottle attack to the tall man (Littlewood), which conflicted with the oral evidence given by MZ's father at trial, who unequivocally identified the appellant as the person who struck his son with the bottle.

  • Whether the jury's guilty verdict was unreasonable and could not be supported by the evidence, within the meaning of the test established in M v The Queen and confirmed in MFA v The Queen and SKA v The Queen
  • Whether leave to appeal was required under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW), given that the ground involved a question of fact alone (or mixed law and fact)
  • Whether the uncertainty created by the police officer's informal notes was sufficient to justify granting leave, even if the appeal on the merits was ultimately dismissed

Decision

The Court of Criminal Appeal confirmed that its task on an unreasonable verdict ground is to make an independent assessment of the sufficiency and quality of the evidence, while giving full weight to the jury's primary role as the body entrusted with fact-finding. The operative question is whether it was open to the jury to be satisfied beyond reasonable doubt of the accused's guilt, or whether it would be dangerous to allow the verdict to stand.

Because the ground raised a question of fact alone, the appellant required leave under s 5(1)(b) of the Criminal Appeal Act 1912. The Court granted leave, but only because of the uncertainty created by Senior Constable Zitianellis' informal scrapbook notes, which appeared at first glance to attribute the bottle strike to Littlewood rather than the appellant. Simpson J was explicit that the strength of the Crown case would not otherwise have warranted leave.

On the substantive question, Simpson J, with Davies and Adamson JJ agreeing, concluded that the verdict was amply open on the whole of the evidence. MZ's father gave forceful and unequivocal evidence that he saw the appellant strike his son with the bottle. Davies J added a significant observation: MZ could only have been struck by one of two people, and no witness placed a bottle in Littlewood's hand at any relevant time. Further, MZ's own evidence as to his position at the moment of impact made it physically implausible that Littlewood had delivered the blow without MZ having seen him do so.

All three judges conducted their own independent review of the evidence and each reached the same conclusion: it was easily open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of reckless wounding.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Under the M v The Queen line of authority, the Court of Criminal Appeal must independently assess the quality of the evidence and ask whether it was open to the jury to be satisfied beyond reasonable doubt, while giving full weight to the jury's primary fact-finding role.
  • Leave to appeal under s 5(1)(b) of the Criminal Appeal Act 1912 is required where the ground of appeal involves a question of fact alone or a question of mixed law and fact, including an unreasonable verdict ground.
  • In dismissing the appeal, the Court confirmed that informal police notes taken without an official notebook, and without a record of the time or precise circumstances of a conversation, may create sufficient evidential uncertainty to justify granting leave, even where the substantive evidence strongly supports the conviction.
  • Where only two people could physically have committed an act, and no evidence placed a weapon in the hands of one of them, a jury's conclusion that the other was responsible may be readily characterised as open beyond reasonable doubt.
  • Conflicting accounts between a witness's trial evidence and what appears in early police notes do not automatically render a verdict unreasonable; the court examines the totality of the evidence, including physical and positional considerations that bear on plausibility.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 35(4) (reckless wounding)
- Criminal Appeal Act 1912 (NSW), s 5(1)(b) (leave to appeal on questions of fact)
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A (non-publication of children's names)
- Evidence Act 1995 (NSW), s 38 (unfavourable witnesses)

Cases
- M v The Queen [1994] HCA 63; 181 CLR 487
- MFA v The Queen [2002] HCA 53; 213 CLR 606
- SKA v The Queen [2011] HCA 13; 243 CLR 400