Malicki v The Queen; R v Malicki - [2015] NSWCCA 162

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Malicki v R; R v Malicki [2015] NSWCCA 162
Hearing dates: 13 May 2015; last written submissions 22 May 2015
Decision date: 25 June 2015
Before: Leeming JA at [1];
Johnson J at [74];
Beech-Jones J at [75]
Decision:
In the appeal against conviction:
1. Refuse leave in respect of grounds 1 and 2.
2. Appeal dismissed.
In the Crown appeal:
1. Appeal dismissed.
Catchwords:
CRIMINAL LAW - appeal against conviction - appellant convicted of causing injury to a person believed to be a witness in judicial proceedings - Crimes Act 1900 (NSW), s 326(2) - trial judge misdirected jury as to elements of offence - counsel made no objection during trial - misdirection favourable to accused - no miscarriage of justice - appeal dismissed
CRIMINAL LAW - Crown appeal against sentence - Crown abandoned reliance on much of the criminal conduct - no error in sentencing on basis put to sentencing judge by the Crown - no tailoring of sentence - sentence not an “affront to justice” or “plainly unjust” - Crown appeal dismissed
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), s 7, Part 5
Crimes Act 1900 (NSW), s 326
Criminal Appeal Act 1912 (NSW), ss 5, 5D, 6
Criminal Legislation Amendment Act 1995 (NSW)
Criminal Appeal Rules, r 4
Cases Cited: Gordon v R [2009] NSWCCA 72
Kural v The Queen (1987) 162 CLR 502
Linney v R [2013] NSWCCA 251
Marinellis v R [2006] NSWCCA 307
Panchal v R; R v Panchal [2014] NSWCCA 275
Polley v Johnson [2014] NSWSC 1191
R v Cahill [2015] NSWCCA 53
R v Harris [2015] NSWCCA 81
R v Lansdell (Court of Criminal Appeal (NSW), Gleeson CJ, Finlay and Simpson JJ, 22 May 1995, unrep)
R v Linney [2012] NSWSC 1564
R v Schaffer [2005] NSWCCA 193; 153 A Crim R 372
SKA v The Queen [2011] HCA 13; 243 CLR 400
Category: Principal judgment
Parties: Carla Hendrina Malicki (Appellant/Cross-respondent)
Crown (Respondent/Cross-appellant)
Representation:
Counsel:
G P Craddock SC (Appellant/Cross-respondent)
N Williams (Respondent/Cross-appellant)
Solicitors:
Toomey Defence Lawyers (Appellant/Cross-respondent)
Solicitor for Public Prosecutions (Respondent/Cross-appellant)

File Number(s): 2011/349161
Decision under appeal

Court or tribunal:

District Court of New South Wales

Date of Decision:

19 February 2013

Before:

Jeffreys DCJ

File Number(s):

2011/349161

Judgment

LEEMING JA: Ms Carla Hendrina Malicki pleaded not guilty to one charge of causing injury to Mr Michael Lees because she believed that he would be called as a witness in judicial proceedings, contrary to s 326(2) of the Crimes Act 1900 (NSW). After a nine day trial, a jury returned a guilty verdict, on 19 February 2013. The maximum penalty was 10 years’ imprisonment. A sentence was not imposed until 9 May 2014. The sentence imposed was one of imprisonment for 20 months, to be served by way of an Intensive Correction Order pursuant to s 7 and Part 5 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
The Crown appealed,…

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.

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Details

Case: [2015] NSWCCA 162
Decision Date: 25 June 2015

CaseChat Overview and Summary

The appeal in Malicki v The Queen involved the appellant, Malicki, who had been convicted of causing injury to a person believed to be a witness in judicial proceedings. The matter was heard in the High Court of Australia. The conviction arose from an incident where Malicki had assaulted a person who was considered a witness in a judicial proceeding, in violation of section 326(2) of the Crimes Act 1900 (NSW). The primary legal issue before the court was whether the trial judge had misdirected the jury regarding the elements of the offence, and if so, whether this constituted a miscarriage of justice warranting a new trial.

The court examined the trial judge's instructions to the jury and found that there had indeed been a misdirection. However, the misdirection was deemed favourable to the accused, meaning it did not prejudice the appellant’s defence. Given the nature of the misdirection and its impact, the court concluded that it did not result in a miscarriage of justice. Consequently, the appeal against the conviction was dismissed. The court also considered the Crown's appeal against the sentence, which was abandoned on many grounds during the proceedings. The Crown's remaining arguments did not establish any error in the sentencing process, and the sentence was not deemed to be an affront to justice or plainly unjust. Therefore, the Crown's appeal against the sentence was also dismissed.

Orders