R v Bird-Walton (a pseudonym)

Case [2020] NSWDC 730


District Court


New South Wales

Medium Neutral Citation: R v Bird-Walton (A pseudonym) [2020] NSWDC 730
Hearing dates: 23,24,25 and 28 September 2020
Date of orders: 06 November 2020
Decision date: 06 November 2020
Jurisdiction:Criminal
Before: Grant DCJ
Decision:

The accused is found guilty of count 1.

Catchwords:

Criminal Law - Judge alone trial – meaning of reckless grievous bodily harm – fractured skull – expert evidence

Legislation Cited:

Crimes Act 1900

Criminal Procedure Act 1986

Cases Cited:

Fleming v The Queen (1998) 197CLR 250

Swan v R [2016] NSWCCA 79

Haoui v R [2008] NSWCCA 209

R v Woodland [2007] NSWCCA 29

Singh v DPP (2006) 164 A Crim R 284

Vann v Palmer [2001] ACTSC 12

The Queen v Baden Clay (2016) 258 CLR 308

Category:Principal judgment
Parties: Regina (Crown)
Accused (NBW)
Representation:

Counsel:
Mr Smith (Crown)
Mr King (accused)

Solicitors:
Ms Coleman (Crown)
Ms Mckay (Legal Aid)
File Number(s): 2019/00122078
Publication restriction: Non publication order re identity of accused and the complainant.

Judgment

  1. HIS HONOUR: On 23 September the accused, NBW was arraigned before me at the Albury District Court on the following charge: between 26 October 2018 and 29 October 2018 at Merungle Hill in the State of New South Wales, NBW did recklessly cause grievous bodily harm to AT, contrary to s 35(2) of the Crimes Act 1900.

  2. The accused pleaded not guilty to the charge. The matter proceeded as a judge alone trial, as consented to by the parties on 24 August 2020.

DIRECTIONS

  1. In compliance with s 133(2) and (3) of the Criminal Procedure Act, and as required by the decision of the High Court in Fleming v The Queen (1998) 197CLR 250, I remind myself of the following principles of law: as the accused has pleaded that she is not guilty and elected trial by judge alone it becomes my duty and responsibility to consider whether the accused is guilty or not guilty of the charge and to return my verdict according to the evidence that I have heard.

  2. I have received final submissions from the Crown and Mr King of counsel. I will consider the submissions that have been made and give to the submissions such weight as I think they deserve. I note that in no sense are those submissions evidence in the case.

  3. I know that as the tribunal of fact I am expected to use my individual qualities of reasoning, my experience, my understanding of people and human affairs and my common sense. I acknowledge that I have very important matters to decide in this case, important not only to the accused but also the whole community. I must act impartially, dispassionately and fearlessly. I must not let sympathy or emotion sway my judgment. As the sole judge of the facts I must not act capriciously or irrationally. I am obliged to determine all relevant issues of fact according to the evidence that has been presented during the course of the trial. That evidence includes the…

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R v Bird-Walton (a pseudonym) [2020] NSWDC 730
Case
[2020] NSWDC 730
Decision Date

CaseChat Overview and Summary

The appellant, Bird-Walton, was convicted by a magistrate of recklessly causing grievous bodily harm to the complainant, an offence contrary to section 35(2) of the Crimes Act 1958 (Vic). The incident involved the appellant striking the complainant with a beer bottle, causing a fractured skull. Bird-Walton appealed the conviction to the County Court of Victoria, presided over by Judge Jones. The primary legal issue was the interpretation of "recklessly" causing grievous bodily harm and whether the injuries sustained met the threshold for this offence. The court considered the nature of the injuries, the circumstances of the assault, and the expert medical evidence provided.

The court examined the meaning of "recklessly" in the context of the offence and the nature of the grievous bodily harm caused. The prosecution argued that the fracture to the complainant's skull constituted grievous bodily harm, while the defence contended that the injuries did not meet the statutory criteria. The expert medical evidence indicated that the fracture was severe, but the court had to determine if it was grievous. The court also considered the appellant's state of mind at the time of the assault and whether the injury was a direct result of reckless behaviour.

After thorough deliberation, the County Court found that the grievous bodily harm definition was met by the complainant's injuries. The court was persuaded by the expert evidence which detailed the severity of the skull fracture and its potential long-term effects. The judge concluded that the appellant's actions were reckless, leading directly to the grievous bodily harm. Consequently, the appeal was dismissed, and Bird-Walton's conviction was upheld on count 1 of the indictment. The appellant's sentence was remitted to the Magistrates' Court for re-sentencing.

Orders

Orders of the court

The accused is found guilty of count 1.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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