Hurst, Luke Maurice v State of Tasmania [TASCCA]

• Jurisdiction: Tasmania
• Court: Court of Criminal Appeal
• Judge: Evans J,Porter J,Wood J
• Judgment Date: 22 September 2011
• Docket Number: 308/2011
• Date: 22 September 2011

[2011] TASCCA 12

SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)

Evans, Porter and Wood JJ

308/2011

Hurst, Luke Maurice

and

State of Tasmania

The People, v Rodriguez 2000 92 Cal Rptr 2d 236 and R v Burns (2009) 103 SASR 514, not followed.

Aust Dig Criminal law [3490]

Criminal Law — Appeal and new trial — Particular grounds of appeal — Misdirection and non-direction — Particular cases — Where appeal allowed — No presumption as to the primacy of either written or oral directions.

REASONS FOR JUDGMENT

COURT OF CRIMINAL APPEAL

Evans J Porter J Wood J

1 At the conclusion of the hearing of this appeal, we allowed it and quashed the appellant's conviction on two counts of wounding. We said that we would publish our reasons later. These are those reasons.

2 The appellant was tried on charges that, contrary to theCriminal Code, s172, he at Mount Nelson on or about 22 January 2010:

1. (1) unlawfully wounded Stephen Joseph by stabbing him in the back with a knife; and

2. (2) unlawfully wounded Angela Nicholls by cutting her to the neck and chest with a knife.

3 The case advanced by the prosecution on the trial was that during an altercation outside the property where the complainants, Stephen Joseph and Angela Nicholls resided, the appellant wounded each of them with a knife.

4 It was common ground that on the evening of the day in question, as the appellant and his girlfriend, Emily Robinson, walked past the property where the complainants resided, there was a verbal altercation between Stephen Joseph and the appellant. This resulted in both complainants walking down the steps from their first floor unit to a car park where they confronted the appellant and Ms Robinson. Punches were exchanged between the men, most of which did not connect. However, Mr Joseph was able to punch the appellant to the face, causing him to fall to the ground.

5 The prosecution's case was that upon seeing the appellant struck by Mr Joseph, Ms Robinson smashed a bottle over Mr Joseph's head. This prompted Ms Nicholls to grab a stake and use it to hit Ms Robinson to the head. Contemporaneously with these events, the appellant got to his feet. He approached Mr Joseph who felt what he thought was a light punch to his lower back. He turned to see the appellant holding a knife. Mr Joseph had sustained a clean puncture wound to the lower back. This incident was the basis of the first charge of wounding.

6 It was the prosecution's case that following this incident, the appellant approached Ms Nicholls and, in a sweeping motion with the knife, he inflicted wounds to her neck and breast. This incident was the basis of the second charge of wounding.

7 The appellant's case at trial was that he did not have a knife when the incidents occurred. The jurors, by their verdict, rejected this claim. The other key issue for the jurors was whether the appellant had the requisite mental element at the time that he inflicted each wound.

8 The appellant's mental state at the time of the incidents was squarely raised by evidence that when Mr Joseph punched the appellant in the early stages of the altercation:

• •the appellant received at least one punch to the jaw;

• •the punch caused him to fall to the ground;

• •his eyes rolled up into his head;

• •he lost consciousness for five to ten seconds;

• •when he stood he was groggy; and

• •when interviewed by police he was uncertain that he had received a punch to the face, and was unaware that he had fallen to the ground.

9 As is the common practice, the learned trial judge, Tennent J, prepared a memorandum for the purposes of instructing the jury at the conclusion of the evidence and the addresses of counsel. Under the heading ‘Wounding’ the memorandum included the following paragraph:

‘4 In respect of each of the counts on the indictment, the State must prove that

1. a the accused,

2. b by a voluntary and intentional act wounded Mr Joseph (count 1) and/or Ms Nicholls (count 2)

3. c the act (in each case the act is said to be a stabbing with a knife) was done with the intention of wounding Mr Joseph and/or Ms Nicholls or was done recklessly, in that the accused ought to have known when he struck out with a knife that a probable consequence of his act was that Mr Joseph and/or Ms Nicholls would be wounded, and

4. d when the accused wounded Mr Joseph and/or Ms Nicholls, he was not acting lawfully.’

10 Under the heading ‘Alternative verdict – Assault’, the memorandum included the following paragraph:

‘4 If you are satisfied the accused struck Mr Joseph and/or Ms Nicholls with a knife but you are not satisfied beyond reasonable doubt that the accused, when he struck each of them with a knife, intended to wound them or that his act of striking with a knife was done in such a reckless manner that he ought to have known he would wound either or both of them, then you should find the accused not guilty of wounding.’

11 Whilst the prosecution can establish the requisite mental element on a charge of wounding by proving actual intent or recklessness, the above paragraphs were incorrect insofar as they addressed recklessness on the basis of what the accused ‘ought to have known’. The form of recklessness that provides a pathway to conviction on a charge of wounding is subjective recklessness, which is based on what the accused in fact foresaw, not objective recklessness, which is based on what the accused ought to have foreseen. The mental element of wounding is an ‘actual intent to wound or subjective recklessness’:R v Bennett [1990] Tas R 72, Neasey J at 81, agreed with by Underwood and Crawford JJ (as they then were) at 85 and Vallance v R (1961) 108 CLR 56. As explained by Zeeman J in Standish v R [1991] TASSC 83 at par[22], (1991) 61 A Crim R 364 at 372:

‘The expression “subjective recklessness” is merely a shorthand way of expressing the requirement that in order to convict the appellant, the jury needed to be satisfied that at the time the appellant performed the relevant act he foresaw the likelihood that a wounding might be caused.’

12 R v Bennett (supra) involved a charge of causing grievous bodily harm. As explained in that case at 82 and 83, the mental element of that crime is the same as that for wounding, they being allied in the Code, s172. In that case the Attorney-General contended that the italicized portion of the following passage in the memorandum provided to the jury was erroneous:

‘To convict the accused...