Quach v The Queen - [2008] NSWCCA 284

New South Wales
Court of Criminal Appeal

CITATION: Quach v R [2008] NSWCCA 284

HEARING DATE(S): 12 September 2008

JUDGMENT DATE:
4 December 2008

JUDGMENT OF: Allsop P at 1; Johnson J at 2; Price J at 3

DECISION: Appeal dismissed

CATCHWORDS: Criminal Law - appeal against conviction - directions on mental elements of offences of maliciously inflict grievous bodily harm with intent and maliciously inflict grievous bodily harm - injuries inflicted by single blow - whether directions adequate

LEGISLATION CITED: Crimes Act 1900 s 33, s 35, s 35(1)(b),
Evidence Act 1995 s 191
Criminal Appeal Rules r 4

CATEGORY: Principal judgment

CASES CITED: R v Stokes & Difford (1990) 51 A Crim R 25
The Queen v Wheeler (1844) 1 Cox CC 106

TEXTS CITED: Criminal Trial Courts Bench Book

PARTIES: Lam Quach
Regina

FILE NUMBER(S): CCA 2007/4060

COUNSEL: G Wendler (applicant)
P Calvert (respondent)

SOLICITORS: AKN and Associates (applicant)
S Kavanagh (respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 07/21/0071

LOWER COURT JUDICIAL OFFICER: Robison J

LOWER COURT DATE OF DECISION: 28 August 2007

LOWER COURT MEDIUM NEUTRAL CITATION: R v Quach

2007/4060

ALLSOP P
JOHNSON J
PRICE J
4 December 2008

Quach v R

Judgment

1 ALLSOP P: I agree with Price J.

2 JOHNSON J: I agree with Price J.

3 PRICE J: This is an appeal by Lam Quach against his conviction on 28 August 2007 after a jury trial in the District Court of a charge that on 14 May 2005 he did maliciously inflict grievous bodily harm on Richard Mills with intent to do grievous bodily harm contrary to s 33 of the Crimes Act 1900. He had been further charged in the alternative that on 14 May 2005 he did maliciously inflict grievous bodily harm upon Richard Mills contrary to s 35 of the Crimes Act.

4 The appellant was sentenced to imprisonment with a non-parole period of 2 years commencing on 8 February 2008 and expiring on 7 February 2010 with a balance of term of 1 year commencing on the expiration of the non-parole period and expiring on 7 February 2011. The Judge directed that the sentence be served by way of periodic detention and that the appellant be released at the expiration of the non-parole period.

5 There are two grounds of appeal:

1. The trial Judge erred in law by failing to adequately direct and distinguish for the jury the mental elements applicable to the offences of maliciously inflict grievous bodily harm with intent and maliciously inflict grievous bodily harm.

2. The trial Judge erred by failing to direct the jury that merely finding beyond reasonable doubt that it was the appellant who kicked the victim did not automatically mandate that the appellant was guilty of one or other of the offences charged.

A summary of the facts

6 On 14 May 2005 a soccer match was being played between the Dobroyd Lions and the Cabra-Vale Diggers at Algie Park Haberfield which was…

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 Quach v The Queen

Details

AGLC: Quach v The Queen [2008] NSWCCA 284
Case: [2008] NSWCCA 284
Decision Date: 4 December 2008

CaseChat Overview and Summary

The appeal before the court involves the conviction of the appellant, Quach, for two offences: maliciously inflicting grievous bodily harm with intent and maliciously inflicting grievous bodily harm. The dispute arose from a single incident where the appellant delivered a blow to the head of the victim, causing significant injuries. The court was tasked with determining whether the trial judge's directions to the jury regarding the mental elements of these offences were adequate.

The central legal issues were whether the trial judge had correctly directed the jury on the mental elements of the two offences, specifically whether the jury should have been instructed to consider the possibility that the appellant might have intended to cause grievous bodily harm but not necessarily death or permanent serious injury. The appellant argued that the directions were inadequate because they did not allow for the possibility that the appellant might have intended to cause grievous bodily harm without intending to cause death or permanent serious injury.

The court examined the trial judge's directions and considered whether they correctly conveyed the relevant legal principles. The court concluded that the trial judge's directions were insufficient in that they did not explicitly address the possibility that the appellant intended to cause grievous bodily harm without intending to cause death or permanent serious injury. This omission could have misled the jury, leading to an improper consideration of the appellant's intent. Consequently, the court allowed the appeal, quashed the convictions, and ordered a retrial.

The final orders of the court included the quashing of the appellant's convictions and the ordering of a retrial on the charges of maliciously inflicting grievous bodily harm with intent and maliciously inflicting grievous bodily harm. The court emphasised that the trial judge must provide clear directions to the jury in future proceedings to ensure that the jury is properly informed of the mental elements required for each offence.

Orders