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
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
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 Markou v R
Sign in free to access the full text
Details
AGLC
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.