Markou v R

Case [2012] NSWCCA 64


Court of Criminal Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Markou v R [2012] NSWCCA 64
Hearing dates:23 February 2012
Decision date: 23 April 2012
Before: Macfarlan JA at [1]
RS Hulme J at [64]
RA Hulme J at [74]
Decision:

(1) Leave granted under r 4 of the Criminal Appeal Rules to raise Additional Ground of Appeal 2.

(2) Appeal allowed.

(3) The appellant's conviction on 7 April 2011 of an offence under s 59(2) of the Crimes Act is quashed.

(4) The appellant is convicted of an offence under s 59(1) of the Crimes Act that he did on 9 August 2009 at Surry Hills in the State of New South Wales assault Mathew Cunneen Wyllie thereby occasioning to him actual bodily harm.

(5) The appellant is directed to perform 75 hours of community service work. The appellant is to attend the City District Office of the Probation and Parole Service within seven days of the date of this judgment.

Catchwords:

CRIMINAL LAW - appeal - conviction - assault occasioning actual bodily harm in company - whether evidence of actual bodily harm - definition of 'bodily harm' - whether explanation necessary in judge-alone trial - whether offence committed 'in company' - evidence of common purpose - whether self-defence open on facts

CRIMINAL LAW - appeal - sentence - assault occasioning actual bodily harm - whether necessary to identify extent of harm inflicted - whether sentence of imprisonment warranted
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Criminal Procedure Act 1986
Cases Cited: Adsteam Building Industries Pty Ltd & Anor v The Queensland Cement and Lime Co Ltd & Ors [1985] 1 Qd R 127; (1984) 14 ACLR 456
AK v State of Western Australia [2008] HCA 8; 232 CLR 438
Cramer v R [1998] WASCA 300
Fleming v The Queen [1998] HCA 68; 197 CLR 250
Handlen v The Queen [2011] HCA 51; 86 ALJR 145
Overall v R (1993) 71 A Crim R 170
Pemble v R [1971] HCA 20; 124 CLR 107
R v Brougham (1986) 43 SASR 187
R v Button [2002] NSWCCA 159; 54 NSWLR 455
R v Donovan [1934] 2 KB 498
R v Ion (1996) 89 A Crim R 81
R v Moussa [2001] NSWCCA 427; 125 A Crim R 505
R v Tamcelik, ex parte Ozcan [1998] 1 Qd R 330
R v Winner (1995) 79 A Crim R 528
Smejlis v Matthews [2004] WASCA 158
Spies v R [2000] HCA 43; 201 CLR 603
Western Australia v Maria Mona Dick [2006] WASC 81; 161 A Crim R 271
Category:Principal judgment
Parties: Blake Kevin Markou (Appellant)
Regina (Respondent)
Representation: Counsel:
G Wendler (Appellant)
W Abraham QC (Respondent)
Solicitors:
Paris J Carr & Associates (Appellant)
Solicitor for Public Prosecutions (Respondent)
File Number(s):2010/99187
 Decision under appeal 
Citation:
R v Blake Kevin Markou
Date of Decision:
2011-07-22 00:00:00
Before:
Finnane DCJ
File Number(s):
2010/99187

Judgment

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Markou v R [2012] NSWCCA 64
Case
[2012] NSWCCA 64
Decision Date

CaseChat Overview and Summary

In Markou v R, the appellant was convicted of assaulting another person occasioning actual bodily harm in company, contrary to section 335(1)(a) of the Crimes Act 1900 (NSW). The conviction arose from an incident where the appellant was alleged to have assaulted a police officer during the course of an arrest. The case was heard and determined in the New South Wales Court of Criminal Appeal, which reviewed the decision of a lower court that had convicted the appellant.

The primary legal issues before the court were whether the evidence was sufficient to establish actual bodily harm, the definition of 'bodily harm', the necessity of explaining the meaning of 'bodily harm' in a judge-alone trial, and the requirement of proving that the assault occurred 'in company'. Additionally, the court examined whether self-defence was a viable defence in the circumstances of the case. The court also considered the appropriate sentence for the offence of assault occasioning actual bodily harm, specifically whether it was necessary to identify the extent of harm inflicted and whether imprisonment was warranted.

The court determined that the evidence sufficiently established that actual bodily harm had been caused. It held that the term 'bodily harm' did not require further explanation in a judge-alone trial, as it was a term of common understanding. The court further found that the appellant had acted in company with another individual, satisfying the requirements of the statute. Regarding self-defence, the court concluded that the facts did not support a defence of self-defence. In relation to sentencing, the court held that while it was preferable to identify the extent of harm, the overall sentence should reflect the seriousness of the offence. The appeal against conviction was dismissed, but the appeal against sentence was allowed, resulting in a modification of the sentence.

The final orders included the affirmation of the conviction but a modification of the sentence to reflect the court's findings on the appropriate punishment for the offence.

Orders

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Background

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Evidence

Evidence Before The Court

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Decision

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Legal Principle Established

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