McDonald v The Queen - [2010] NSWCCA 220

New South Wales
Court of Criminal Appeal

CITATION: McDonald v R [2010] NSWCCA 220

HEARING DATE(S): 31 August 2010

JUDGMENT DATE:
30 September 2010

JUDGMENT OF: Macfarlan JA at 1; Simpson J at 27; Hall J at 28

DECISION: (1) Leave to rely upon Grounds 1 and 2 of the Notice of Appeal is refused; and
(2) Appeal dismissed.

CATCHWORDS: CRIMINAL LAW – conviction appeal – former s 33 Crimes Act 1900 – wounding with intent to cause grievous bodily harm – whether trial judge erroneously directed jury that conviction could be based on recklessness – whether trial judge correctly directed jury on need to find both malice and intent to cause grievous bodily harm - CRIMINAL LAW – conviction appeal – self-defence – s 419 Crime Act 1900 – whether trial judge effectively reversed onus of proof – whether trial judge correctly directed jury that Crown required to prove beyond reasonable doubt that accused did not act in self-defence

LEGISLATION CITED: Crimes Act 1900
Criminal Appeal Rules

CATEGORY: Principal judgment

CASES CITED: R v Chai [2002] HCA 12; (2002) 76 ALJR 628
Thomas v R [1960] HCA 2; (1959 – 1960) 102 CLR 584

PARTIES: Jeffrey Keith McDonald (Appellant)
Regina (Respondent)

FILE NUMBER(S): CCA 2008/5036

COUNSEL:
M Dennis (Appellant)
J Pickering (Respondent)

SOLICITORS: Legal Aid Commission
Solicitor for Public Prosecutions

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2008/5036

LOWER COURT JUDICIAL OFFICER: Garling DCJ

LOWER COURT DATE OF DECISION: 6 March 2009

CCA 2008/5036

MACFARLAN JA
SIMPSON J
HALL J
30 SEPTEMBER 2010

Jeffrey Keith McDONALD v R

Judgment

1 MACFARLAN JA: On 6 March 2009 a jury found the appellant guilty of an offence under s 33 Crimes Act 1900, namely, that on 18 October 2007 he “did maliciously wound Terry Jaenke with intent thereby to do grievous bodily harm to the said Terry Jaenke”.

2 The offence carried a maximum penalty of 25 years’ imprisonment and a standard non-parole period of 7 years was applicable to it. On 12 March 2009 the trial judge, Garling DCJ, sentenced the appellant to a total term of imprisonment of nine years and four months with a non-parole period of seven years.

3 The appellant appeals against his conviction. He does not seek leave to appeal against the sentence imposed upon him.

Factual circumstances

4 The victim, Mr Terry Jaenke, resided in a residential unit that was part of a complex in which the appellant resided. On the evening of 18 October 2007 Mr Jaenke walked past the unit occupied by the appellant. Mr Jaenke gave evidence that as he did so he heard the appellant yell out, apparently to him, words to the effect of “[f]uck you”. Mr Jaenke said that he responded with words to the effect of “[p]iss off”. On Mr Jaenke’s evidence the appellant then ran towards him and struck his neck with a “cane-cutter”, a sharp-bladed implement. As he had put his hand up to protect himself, one of Mr Jaenke’s…

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 McDonald v The Queen

Details

AGLC: McDonald v The Queen [2010] NSWCCA 220
Case: [2010] NSWCCA 220
Decision Date: 30 September 2010

CaseChat Overview and Summary

The case before the court was an appeal against a conviction by McDonald, the appellant, who was found guilty of wounding with intent to cause grievous bodily harm. The decision was made by the Court of Criminal Appeal in New South Wales. The appellant contested the conviction on several grounds, including the trial judge's direction to the jury regarding the basis of the conviction and the onus of proof concerning self-defence.

The primary legal issues before the court were whether the trial judge had erroneously directed the jury that the conviction could be based on recklessness, and whether the trial judge correctly instructed the jury on the need to find both malice and intent to cause grievous bodily harm. Additionally, the court considered whether the trial judge had effectively reversed the onus of proof by instructing the jury that the Crown had to prove beyond reasonable doubt that the accused did not act in self-defence.

The court examined the trial judge's directions to the jury and found that there was no error in the judge's instructions concerning recklessness, as the relevant section of the Crimes Act 1900 was not limited to cases of intention or knowledge. The court further determined that the trial judge correctly directed the jury on the need to find both malice and intent to cause grievous bodily harm. Regarding the issue of self-defence, the court held that the trial judge did not reverse the onus of proof, as the direction to the jury was consistent with the statutory requirements of section 419 of the Crimes Act 1900.

The appeal was dismissed, and the conviction was upheld. The court's reasoning and outcome were based on the correctness of the trial judge's directions to the jury and the adherence to statutory requirements in the context of the charges against the appellant.

Orders