McKay v The Queen - [2014] NSWCCA 187

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: McKay v R [2014] NSWCCA 187
Hearing dates: 23 July 2014
Decision date: 17 September 2014
Before: Hoeben CJ at CL at [1]
McCallum J at [75]
Garling J at [76]
Decision:
In relation to both the conviction appeal and the application for leave to appeal against sentence, leave to appeal granted but appeal dismissed.

Catchwords: CRIMINAL LAW - CONVICTION APPEAL - assault occasioning actual bodily harm - applicant and victim both prisoners - fight as a result of which victim suffered serious injury to an eye - whether verdict of jury was capable of being supported by the evidence - whether jury adopted an inappropriate line of reasoning - whether inconsistency in jury acquitting on primary judge but convicting on secondary charge - verdict open to jury - SENTENCE APPEAL - challenge to fact finding of sentencing judge - basis for challenge not established - appeal dismissed.
Legislation Cited: Crimes Act 1900 - s 35(2), s 59
Evidence Act 1995 - s38
Cases Cited: Mackenzie v R [1996] HCA35; 190 CLR 348
MFA v R [2002] HCA 53; 213 CLR 606
SKA v The Queen [2011] HCA 13; 243 CLR 400
Category: Principal judgment
Parties: Matthew James McKay - Applicant
Regina - Respondent Crown
Representation: Counsel:
Mr D Dalton SC - Applicant
Ms V Lydiard - Respondent
Solicitors:
Michael Bowe - Applicant
S Kavanagh, Solicitor for Public Prosecutions - Respondent Crown

File Number(s): 2011/268992
Decision under appeal

Date of Decision:

2013-05-17 00:00:00

Before:

Huggett DCJ

File Number(s):

2011/268992

Judgment

HOEBEN CJ at CL:

Offences and sentence

The applicant was tried in the District Court of New South Wales before Huggett DCJ and a jury from 16 - 24 April 2013 upon two counts as follows:

Count 1: Recklessly cause grievous bodily harm contrary to s 35(2) Crimes Act 1900 and in the alternative,

Count 2: Assault occasioning actual bodily harm, contrary to s 59 Crimes Act 1900.

The jury acquitted upon the first count and convicted upon the second. Her Honour sentenced the applicant to a term of imprisonment of 4 years with a non-parole period of 3 years to date from 15 June 2011.

The applicant initially appealed against conviction only on the following grounds:

Ground 1: The verdict of the jury was unsafe and unsatisfactory and cannot be supported by the evidence and/or

Ground 2: The jury has adopted an inappropriate line of reasoning in seeking to differentiate between the elements of the two counts, when upon the evidence, there was no basis to do so, and there has been a miscarriage of justice accordingly.

During the course of oral argument, the applicant was granted leave to amend his Grounds of Appeal to add an additional ground by way of seeking leave to appeal against sentence as follows:

Ground 3: The sentence imposed was manifestly excessive in all the circumstances generally and in particular:

(i) Her Honour erred in finding beyond…

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 McKay v The Queen

Details

AGLC: McKay v The Queen [2014] NSWCCA 187
Case: [2014] NSWCCA 187
Decision Date: 17 September 2014

CaseChat Overview and Summary

The case of McKay v The Queen involved the appellant appealing against both his conviction and sentence. The appellant, a prisoner, was convicted of assault occasioning actual bodily harm following a fight with the victim, also a prisoner, which resulted in the victim suffering serious injury to his eye. The appeal against conviction focused on the adequacy of the evidence to support the jury's verdict, potential inappropriate reasoning by the jury, and an inconsistency in the jury's verdict. The appeal against sentence challenged the fact-findings of the sentencing judge.

The primary legal issues the court needed to address were whether the jury's verdict was supported by the evidence and whether the jury adopted an inappropriate line of reasoning. Additionally, the court had to consider whether the jury's acquittal on the primary charge but conviction on the secondary charge was inconsistent and if the verdict was open to the jury. The court also examined the appellant's challenge to the sentencing judge's fact-findings and whether the basis for such a challenge was established.

The court found that the jury's verdict was adequately supported by the evidence presented. It concluded that the jury did not adopt an inappropriate line of reasoning, and the inconsistency in the jury's verdict did not undermine the conviction. The court held that the verdict was open to the jury given the evidence. Regarding the sentence appeal, the court found that the appellant failed to establish a basis for challenging the sentencing judge's fact-findings.

The appeal against both the conviction and sentence was dismissed. The court confirmed the conviction and sentence as determined by the original trial and sentencing judges.

Orders