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Court of Criminal Appeal 10 August 2016

Phillips v R

[2016] NSWCCA 159

Assault & violence
CRIMINAL LAW APPEAL AGAINST CONVICTION JOINT ASSAULT ON VICTIM LEAVE TO APPEAL REFUSED

Citation: Phillips v R [2016] NSWCCA 159
Court: Court of Criminal Appeal, NSW
Date: 10 August 2016
Judge(s): Hoeben CJ at CL; R A Hulme J; N Adams J

Background

The applicant was convicted by a District Court jury of causing grievous bodily harm with intent, contrary to s 33(1) of the Crimes Act 1900 (NSW). The Crown alleged he was one of four men who jointly attacked a victim on a Redfern street in December 2012, armed with weapons including an aluminium baseball bat and an iron bar. The victim sustained serious injuries, including a fractured jaw, head injuries, and multiple contusions.

The defence at trial rested entirely on identification. The applicant denied being present at the scene, and the only contested question was whether the victim had correctly recognised him as one of the attackers. No argument was raised at trial about whether the applicant's personal actions, as distinct from the group's collective conduct, caused the victim's grievous bodily harm.

After conviction, the applicant sought leave to appeal on grounds not argued at trial: that the trial judge failed to direct the jury that they must be satisfied beyond reasonable doubt that he personally caused the grievous bodily harm, and that the verdict was unreasonable because the evidence could not establish that element.

  • Whether the trial judge erred by failing to direct the jury that personal causation of grievous bodily harm must be proved beyond reasonable doubt against the applicant.
  • Whether the verdict was unreasonable on the basis that the evidence was incapable of establishing that the applicant personally caused the grievous bodily harm.
  • Whether an applicant can raise new grounds on appeal that were never live issues at trial, in circumstances where the defence was conducted entirely on a different basis.

Decision

The Court refused leave to appeal and dismissed the appeal. R A Hulme J, with whom Hoeben CJ at CL and N Adams J agreed, held that the proposed grounds were not genuinely open given how the defence had been conducted at trial. Causation had never been in dispute. Both the Crown and both defence counsel confirmed to the jury that the only real issue was identification. No request was made of the trial judge to give a direction on personal causation, and no objection was raised to the summing-up.

Hulme J drew on the principle in Pemble v The Queen (1971) 124 CLR 107 that a trial judge must direct on matters arising on the evidence, but emphasised the qualifier "upon the evidence." Where a particular issue simply does not arise on the facts as contested at trial, there is no obligation on a judge to direct on it. Sir Leo Cussen's "great guiding rule," cited in Alford v Magee (1952) 85 CLR 437, reinforces that judges should direct juries on the real issues actually in the case, not on every theoretical element of an offence.

N Adams J added that the trial judge's directions treated the applicant and his co-accused as principals in the first degree, consistent with the Crown's approach. The direction on the first element referred specifically to the applicant striking the victim with the baseball bat. The absence of a direction expressly linking personal causation to the specific injuries was not erroneous in the context of a trial where the joint nature of the attack was effectively conceded by both defence teams.

Applying the principles governing Criminal Appeal Rule 4, the Court found the applicant had not established that he lost a real chance, or a chance fairly open to him, of acquittal. The unexplained failure to raise causation at trial was a reliable indicator that no injustice had occurred. The Court noted it would have been preferable for the direction to have been more explicit, but that observation did not alter the outcome.

Orders Made

  • Leave to appeal refused.

Key Takeaways

  • A trial judge's obligation to direct a jury on a particular element or issue arises only where that issue is genuinely live on the evidence and in the conduct of the trial. Where a defence is confined entirely to one ground, such as identification, a failure to direct on a separate element does not automatically constitute error.

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the Criminal Appeal Act does not exist to allow a convicted person to re-run a trial on a different set of issues that were not, but could have been, raised at first instance.

  • The Pemble principle, requiring judges to direct on matters open on the evidence, is qualified: it applies to issues that genuinely arise on the evidence as the trial was actually conducted, not to all theoretical elements of an offence.

  • Where both defence teams effectively concede the joint and intentional nature of an assault, confining their case to identification alone, a Crown case advanced on the basis of joint attack by all four assailants is not undermined by the absence of formal reliance on joint criminal enterprise doctrine.

  • An unexplained failure by experienced defence counsel to seek a direction or object to a summing-up during trial is treated by the Court of Criminal Appeal as a generally reliable indicator of the fairness and adequacy of the directions given.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW) s 33(1)
- Criminal Appeal Act 1912 (NSW) s 5(1)
- Criminal Appeal Rules r 4
- Evidence Act 1995 (NSW) s 191

Cases
- Alford v Magee [1952] HCA 3; 85 CLR 437
- ARS v R [2011] NSWCCA 266
- Huynh v The Queen [2013] HCA 6; 295 ALR 624
- Papakosmas v R [1999] HCA 37; 196 CLR 297
- Pemble v The Queen [1971] HCA 20; 124 CLR 107
- R v Greatorex (1994) 74 A Crim R 496