AW v R

Case [2023] NSWCCA 92 21 April 2023

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: AW v R [2023] NSWCCA 92
Hearing dates: 7 October 2022
Date of orders: 21 April 2023
Decision date: 21 April 2023
Before: Mitchelmore JA at [1];
Davies J at [69];
Hamill J at [70].
Decision:
(1) Leave to appeal granted.
(2) Appeal allowed.
(3) Quash the conviction in respect of Count 2 on the indictment.
(4) Order a new trial in respect of Counts 2 and 3 on the indictment.
(5) Quash the aggregate sentence imposed in the District Court on 21 May 2021.
(6) Remit the undisturbed convictions on Counts 4, 5, 6 and 8 of the indictment for re-sentence.
(7) List the matter in the District Court Country Call-Over, Court 21A John Maddison Tower Sydney, on Wednesday 26 April 2023 at 9:00am to obtain a trial date before the District Court in Nowra.

Catchwords:
CRIME – appeals – appeal against conviction – recklessly inflicting grievous bodily harm contrary to the Crimes Act 1900 (NSW), s 35(2) – where conceded that trial judge misdirected the jury as to mental element of offence – whether misdirections caused a miscarriage of justice – whether appropriate to apply the proviso if miscarriage of justice found to have occurred
CRIME – appeals – appeal against conviction – where appeal against conviction successful – where sentencing judge imposed an aggregate sentence which included the count the subject of the successful appeal – where conviction on other counts was undisturbed – whether appropriate to re-sentence or remit to District Court for re-sentencing

Legislation Cited:
Crimes Act 1900 (NSW), ss 33, 35
Crimes Amendment (Reckless Infliction of Harm) Act 2012 (NSW)
Criminal Appeal Act 1912 (NSW), ss 6, 7, 12
Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15

Cases Cited:
AK v R [2022] NSWCCA 175
Allen v R [2020] NSWCCA 173
Baxter v R [2018] NSWCCA 281
Bazouni v R [2021] NSWCCA 256
BC v R (No 2) [2019] NSWCCA 142
Blackwell v R (2011) 81 NSWLR 119; [2011] NSWCCA 93
Edwards v The Queen (2021) 393 ALR 368; [2021] HCA 28
Ewan v R [2020] NSWCCA 85
Hofer v The Queen (2021) 95 ALJR 937; [2021] HCA 36
Justins v The Queen (2010) 79 NSWLR 544; [2010] NSWCCA 242
Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7
Lane v The Queen (2018) 265 CLR 196; [2018] HCA 28
Morrison v R [2022] NSWCCA 158
Orreal v The Queen (2021) 96 ALJR 78; [2021] HCA 44
Priday v The Queen [2019] NSWCCA 272
Reeves v The Queen (2013) 88 ALJR 215; [2013] HCA 57
Salgado v R [2022] NSWCCA 58
Watson v R [2020] NSWCCA 215
Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81

Category: Principal judgment
Parties: AW (Applicant)
Crown (Respondent)
Representation:
Counsel:
Mr L Brasch and Mr J Leaver (Applicant)
Ms C Curtis (Respondent)
Solicitors:
Australian Lawyers and Advocates (Applicant)
Solicitor for Public Prosecutions (NSW)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading AW v R

Details

AGLC: AW v R [2023] NSWCCA 92
Case: [2023] NSWCCA 92
Decision Date: 21 April 2023

CaseChat Overview and Summary

The appellant, AW, appealed against his conviction for recklessly inflicting grievous bodily harm in circumstances that contravened section 35(2) of the Crimes Act 1900 (NSW). The appeal centred on the contention that the trial judge had misdirected the jury regarding the mental element required for the offence. The Crown conceded that there were indeed misdirections, but argued that they did not result in a miscarriage of justice. Additionally, the appellant sought to challenge the appropriateness of re-sentencing given that his conviction on other counts remained intact.

The central legal issue before the court was whether the misdirections by the trial judge amounted to a miscarriage of justice. If such a miscarriage was established, the court needed to determine if it was appropriate to apply the proviso under section 134 of the Crimes (Appeal and Review) Act 1995 (NSW). Furthermore, the court had to consider the implications for re-sentencing, particularly since the appellant's conviction on other counts was not under appeal. The Crown contended that because the appellant's other convictions remained valid, the appropriate course of action was to remit the matter to the District Court for re-sentencing.

The court found that the misdirections by the trial judge did indeed result in a miscarriage of justice. However, considering the overall circumstances and the fact that the appellant's conviction on other counts was undisturbed, the court determined that it was not appropriate to re-sentence the appellant. Instead, the matter was remitted to the District Court for re-sentencing to account for the successful appeal on one count. This decision balanced the need to correct legal errors with the importance of finality in criminal proceedings, ensuring that the appellant received a fair and lawful sentence.

Orders