O’Sullivan v R

1. [1]

   BASTEN JA: In the early hours of 20 May 2018 there was an altercation between two groups of men outside a 7-Eleven store at Windsor on the north-western outskirts of Sydney. Three men who arrived in a car together were charged with several offences, including assaults, wounding and affray. One of the men, the applicant, Solomen O’Sullivan, was charged with four offences. The first charged related to an affray against three other men, named Strauf, Krha and Moeckel. The applicant entered a plea of guilty in relation to that charge. He was also charged with an assault occasioning actual bodily harm in company on Mr Moeckel. A jury found him not guilty on that charge. The applicant was further charged with two offences of wounding with intent to cause grievous bodily harm, the victims being Mr Strauf (count 3) and Mr Krha (count 4). He was found guilty of each of those offences. The present application, seeking leave to appeal against conviction, is limited to count 4. The sole ground of appeal was that a miscarriage occurred as a result of the trial judge misstating the prosecution case in a material and significant respect.

2. [2]

   That Mr Krha was “glassed”, that is struck on the head with a broken bottle, was not in dispute. He suffered cuts and abrasions to the left side of his head which were later found to contain fragments of glass. The sole issue in the case turned on which of two men had committed the act. There was no reliance by the prosecution on joint criminal enterprise. That may have been because it was quite unclear as to why the two groups of men were fighting.

3. [3]

   As counsel for the applicant properly accepted, he needed to establish that (i) the judge had misstated the prosecution case and (ii) the misstatement was significant in a material respect. In exploring the second point with counsel, the Court inquired as to whether the real issue might not be the mistake in the summing up, but whether the prosecution had proved to the criminal standard that it was the applicant and not another man who struck Mr Krha. If that were the case, the relevant ground of appeal would have been that the verdict was unreasonable and could not be supported on the evidence, within the first limb of s 6(1) of the Criminal Appeal Act 1912 (NSW).

4. [4]

   Counsel for the applicant, clearly aware that there might be a different way of approaching the appeal, stated that he had considered an unreasonable verdict ground but had elected not to pursue it. Following the discussion with the Court, he proposed that he would reconsider his election while counsel for the Director was addressing. He returned to the issue in reply and adhered to his earlier decision.

5. [5]

   The specific ground that was pursued encountered two procedural hurdles. First, not being a ground raising a question of law alone, it required leave pursuant to s 5(1) of the Criminal Appeal Act. Secondly, because no objection had been taken to the judge’s directions at the trial, leave was required pursuant to r 4 of the Criminal Appeal Rules (NSW). With respect to r 4, the applicant sought to read an affidavit of counsel who had appeared at the trial explaining why he had not questioned the misdirection. He did not suggest that he failed to appreciate the misstatement at the time, but rather said that, to the extent it was inconsistent with his own address to the jury, he thought the trial judge had “ruled against my submissions.” He said that “[i]t did not occur to me that I should ask again to have the matter resolved in the appellant’s favour.” It being no part of the trial judge’s duty to resolve factual matters, it is not clear what these statements were intended to convey. It may be accepted, however, that there was no forensic choice not to object. In any event, it was not a matter which required further exploration in this Court. For reasons which will be outlined below, the misstatement of the prosecution case was minor; however, if the judge’s statement was misunderstood as stronger than its express terms suggested, it was not an error which caused the applicant to lose a chance of acquittal reasonably open to him in the circumstances.

6. [6]

   In order to explain the latter aspect of that conclusion, and to identify why counsel for the applicant was correct in not pursuing an unreasonable verdict ground, it will be appropriate to outline the evidence in a little more detail than would be required by the confined terms of the pleaded ground.

Circumstances of offending

1. [7]

   The prior history of interactions between the two groups of men and the circumstances in which they converged on the 7-Eleven at Windsor in the early hours of 20 May 2018 remain obscure. It was not explained by the victims and none of the accused gave evidence.

2. [8]

   Strauf, Krha and Moeckel had been drinking together for many hours prior to the altercation. At one point, Mr Strauf and Mr Krha were “shadow boxing” but Mr Strauf struck Mr Krha on the chin, knocking him to the ground. At about 12:45am on 20 May, Mr Strauf’s wife, Racheal Strauf, received a phone call from Strauf’s sister asking her to collect her husband, who had drunk too much. When Ms Strauf saw Mr Krha he was in a confused state and was told that he may have lost consciousness at some point, she decided he should go to hospital. (Ms Strauf was a nurse by occupation.) On the way Mr Krha insisted he would not go to the hospital. On getting out of the car he walked into the yard of the 7-Eleven where there were petrol bowsers.

3. [9]

   What happened thereafter was in part captured by CCTV cameras at the 7‑Eleven. The camera footage showed Mr Krha taking his shirt off next to a petrol bowser and directing water from a tap over his head and shoulders. He can then be seen walking across the front of the 7-Eleven store and out of sight.

4. [10]

   Very shortly after Mr Krha walked out of the vision of the camera, a car drove into the area where he had been washing. Three men got out of the car. A large man identified as the applicant got out of the front passenger seat. He was carrying a bottle (probably containing beer) which he emptied on to the ground, holding the bottle upside down, as he walked in the direction taken by Mr Krha. Another large man identified as Brandon Bennett also got out of the car and followed the applicant. His hands were free, but it was said that he could be seen placing a bottle in his trouser pocket. The prosecution case was that the attack which formed the basis of count 4 took place very shortly thereafter, during a period of about 30 seconds when the applicant and Mr Bennett were out of the camera’s view.

5. [11]

   The applicant and Mr Bennett were both large men wearing black T-shirts. The applicant was described as being of Islander extraction; Bennett was not. The third male in the car was the applicant’s brother, Ma’amoloa O’Sullivan. Although he was also of Islander extraction, he was a thin man and is conspicuous in the CCTV footage by reason of his white cap. He did not get out of the car until after the other two men had disappeared out of the vision of the camera and kept looking in their direction but did not follow them at that stage. If that was when the assault occurred, the culprit was either the applicant or Bennett.

6. [12]

   The prosecutor also adduced evidence from a Mr Kasula, who was, on the day in question, working as a console operator at the 7-Eleven. He witnessed events on the forecourt of the 7-Eleven and filmed part of the affray on his mobile phone. He described Mr Krha as having an altercation with a man who fitted the description of the applicant, [1] although the timing of that event was not clear.

7. [13]

   Mr Krha gave evidence that he was hit with the bottle and did not know who hit him. Indeed his evidence was that he did not remember anything about the time he was at the 7-Eleven until he woke up with a pain to the left side of his head. [2] However, he said in a statement to police that he could “just remember a big guy which I describe as an Islander, solid build standing up in front of me.” [3] This description was consistent with the appearance of the applicant, but not the appearance of Mr Bennett.

8. [14]

   It may have been significant for the defence case that when Bennett accompanied the applicant in the direction of Krha, he had a bottle in his pocket. Thus, if both men had bottles, it was possible that either could have caused the injury to the left side of Krha’s head with a broken bottle.

The addresses at trial

1. [15]

   The prosecutor’s submission which it is said the judge misstated was in the following terms, describing what could be seen on the CCTV footage: [4]

2. [16]

   It should be observed that this submission was silent as to whether Mr Bennett had a bottle when he first followed the applicant in the direction Mr Krha took. The only reference to him having a bottle was at a point subsequent to the men returning to the car after the first movement out of camera range.

3. [17]

   Counsel for the applicant addressed the specific issues with respect to count 4 in two separate passages. The first read as follows: [5]

4. [18]

   The second way in which counsel dealt with the matter was to suggest to the jury that the attack on Mr Krha which constituted count 4 did not occur at the time immediately after the applicant arrived at the 7-Eleven and walked, emptying a bottle, in the direction of Mr Krha, but in fact occurred at a later stage when there were other men present and there was an affray, when the applicant had a second bottle which he could just be seen breaking on the ground as he approached the group. [6]

The judge’s summing up

1. [19]

   The substance of the judge’s summing up commenced with reference to the individual counts in the indictment and the elements of the offences which the prosecution was required to establish beyond reasonable doubt. The judge then turned to the particular offences and summarised the prosecution case. In the course of dealing with count 4, he stated, in the passage upon which the applicant relies in this Court: [7]

2. [20]

   The incorrect statement is the brief reference that “the Crown argues that at that point in time it can be seen in the CCTV footage that the other two accused do not have bottles with them”, italicised in the first paragraph of the passage set out above.

3. [21]

   The address by the prosecutor divided the events into two stages. In the first stage, “very shortly after the green Commodore arrives”, reference is only made to the applicant exiting the vehicle from the front passenger seat, carrying a bottle which he empties of liquid almost immediately upon exiting the car. The other two men are described as also walking over in the same direction, but not straightaway with the applicant. They are then described as returning to the vehicle. In other words, although it was not correct to say that the prosecutor submitted that the other men did not have bottles when they first went in the direction of Mr Krha, following the applicant, the prosecutor did not describe them as having bottles. At no stage did the trial judge purport to describe what the CCTV footage revealed, as opposed to what the prosecutor (and in a different passage of his summing up, counsel for the accused) described it as showing.

4. [22]

   In order to demonstrate a significant error, the applicant sought to rely on a positive inconsistency in the judge’s statement. In written submissions, counsel for the applicant relied on the passage in the prosecutor’s address as correctly stating, “[w]hen Mr Bennett is at the car, before he walks over, he’s observed to have a bottle in his hand.” If that was intended to suggest that the prosecutor affirmatively accepted that Mr Bennett had a bottle in his hand before leaving the car on the first occasion (when the attack is said to have occurred), that is not, in my view, how the address would have been understood. Rather, it referred to the time after the men had returned to the car and then, for a second time, walked over towards the driveway where Mr Krha was attacked.

5. [23]

   It may be accepted that the judge was in error in saying that the prosecutor had stated that from the CCTV footage Mr Bennett could be seen not to have a bottle with him. In fact, the prosecutor was silent as to that matter. Whether Mr Bennett could indeed be seen to have a bottle at that point, as the applicant seemed to contend in this Court, was a matter for the jury viewing the CCTV footage. There was no common ground that he did. Nor was it a point which counsel for the applicant raised before the jury in his address. He did not seek to make any point about Mr Bennett having a bottle either in his hand or in his pocket when he first followed the applicant towards Mr Krha.

6. [24]

   Having regard to all the circumstances, the mistake in expressing the prosecutor’s silence as an assertion of a negative would not have affected the jury. As the respondent submitted, the summing up was otherwise undoubtedly fair, balanced and impartial. If the prosecutor had told the jury that Mr Bennett was not carrying a bottle when he left the car on the first occasion, it would in any event have been a matter for them to look carefully at the CCTV footage and determine whether that was correct. They were told on numerous occasions that questions of fact were entirely for them.

7. [25]

   The fact that trial counsel neither asserted the contrary proposition in his own address, nor took objection to the judge’s statement, implies that he did not view the judge’s error as significant in the context of the trial. The relevance of such an inference was explained by this Court in R v Germakian: [8]

8. [26]

   This is not a case in which leave should be granted under r 4 to rely upon the sole ground of appeal.

Further observations

1. [27]

   It is proper to add that there appears to have been evidence before the jury sufficient to justify the applicant’s conviction on count 4. Although it had been submitted at the trial that the prosecutor had not excluded the possibility that Mr Krha received his injury while rolling on ground where there was broken glass, that hypothesis is unlikely to have been given serious consideration by the jury. Mr Krha himself told two witnesses immediately after the event, namely Mr Strauf and Mr Strauf’s wife, that he had been “glassed” and that they “got me with the bottle”.

2. [28]

   As to the possibility that he was hit by Mr Bennett, it is telling that the applicant was the person identified on the CCTV footage as walking in the direction of Mr Krha before the others had left the vicinity of the car. Further the applicant had a bottle in his hand and began tipping the contents on the ground immediately he got out of the car. The jury were entitled to infer that he intended to use the bottle as a weapon. Finally, Mr Krha appears to have identified his assailant as a large fellow of Pacific Islander appearance, a description which fitted the applicant, but not Mr Bennett.

3. [29]

   Whilst it is possible that Mr Bennett could be seen putting a bottle in his pocket immediately after he got out of the rear passenger side seat, that was a matter for the jury to consider: it was not by any means clear. The same act appears to have occurred after the three men returned to the car, although again Mr Bennett is not clearly seen holding a bottle in his hand at any stage.

4. [30]

   After an opportunity to reflect, counsel for the applicant confirmed his view that an unreasonable verdict ground was not available. [9] There is no reason to doubt that assessment.

Orders

1. [31]

   I propose the following orders:

   1. (1)

      Refuse leave to appeal pursuant to Criminal Appeal Rules, r 4, with respect to the sole ground in the application for leave to appeal.

   2. (2)

      Dismiss the application for leave to appeal.

2. [32]

   HARRISON J: I agree with Basten JA.

3. [33]

   ADAMSON J: I agree with Basten JA.