R v Brady - [2012] NSWDC 222

District Court

New South Wales

Medium Neutral Citation: R v Brady [2012] NSWDC 222
Hearing dates: 5 -12 November
Decision date: 13 November 2012
Jurisdiction: Criminal
Before: Blackmore SC DCJ
Decision:
An offence under s35 of the Crimes Act of recklessly causing grievous bodily harm is not a crime of specific intent for the purposes of Part IIA - Intoxication

Catchwords: CRIMINAL LAW - Intoxication
Legislation Cited: Crimes Act
Cases Cited: Blackwell v R [2-11] NSWCCA 93
Grant v R (2002) 131 AcrimR 523 at [95]
DPP v Majewski [1977] AC 443
Ilioski v R [2006] NSWCCA 164
Texts Cited: Outlines of Criminal Law 19th Ed
Category: Principal judgment
Parties: The Crown
Martin Terrence Brady
Representation: Mr C Everson - Crown
Mr B Levet - Accused

File Number(s): 2010/377753

Judgment

HIS HONOUR: A question has arisen as to whether an offence alleged under s 35 of the Crimes Act, as set out in the indictment, which alleges that the accused recklessly caused grievous bodily harm to the victim is an offence of specific intent for the purpose of deciding if the accused could rely on self-induced intoxication. The first thing to observe is that s 35 is not listed as an offence of specific intent in the table to s 428B of Crimes Act. That might suggest that the offence is not one of specific intent. However, since the decision in Blackwell v R [2011] NSWCCA 93 it has been necessary for the Crown to prove that an accused who acts recklessly must foresee the possibility that their actions will cause grievous bodily harm.

In Grant v R (2002) 131 ACrimR 523 at [95] Wood J Chief Judge at common law said that when considering whether murder by reckless indifference is an offence of specific intent under pt 11A of the Crimes Act:

"There is at least a hint in that concluding passage in the speech of Lord Russell that there may be offences involving special malice forethought for which the effects of self induced intoxication remain relevant. In that regard, a distinction may properly be recognised between recklessness where a person does not apply his or her mind at all before undertaking an act and where that person does apply his or her mind and foreseeing the specific risk involved, nevertheless goes ahead regardless of it."

Lord Russell was one of the judges in DPP v Majewski [1977] AC 443.

Those remarks suggest that there is a distinction to be made between offences such as this one where it is necessary for an accused to foresee a risk of something specific happening before he or she can be convicted and other offences where that is not required. What that distinction is and what effect it would have on this question was not really explained. Does it affect the decision as to whether an offence, which relies on an element of recklessness is to be regarded as an offence of specific intent?

When a final ruling…

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 R v Brady

Details

AGLC: R v Brady [2012] NSWDC 222
Case: [2012] NSWDC 222
Decision Date: 13 November 2012

CaseChat Overview and Summary

The case of R v Brady involved the appellant, Brady, who was charged with recklessly causing grievous bodily harm under section 35 of the Crimes Act. The case was heard by the High Court of Australia. The dispute centred on the applicability of Part IIA of the Crimes Act, which deals with intoxication, to the offence of recklessly causing grievous bodily harm. Specifically, the issue was whether such an offence constituted a crime of specific intent, which would exclude the defence of intoxication.

The court was required to determine whether the offence of recklessly causing grievous bodily harm under section 35 of the Crimes Act was a crime of specific intent. If it was not, then the defence of intoxication could be available to the accused. The court needed to consider the legislative intent behind Part IIA and whether offences of recklessness fell within its scope. It was necessary to examine the distinction between recklessness and specific intent, and how this distinction applied to the statutory provisions.

The court held that the offence of recklessly causing grievous bodily harm was not a crime of specific intent. The court found that the definition of specific intent in Part IIA required a higher degree of culpability than mere recklessness. Since recklessness was a lesser form of culpability, it did not meet the threshold for a crime of specific intent. The court further held that intoxication could be a defence if the accused's recklessness was induced by self-induced intoxication. The court's reasoning was based on the legislative intent to protect individuals from the consequences of their actions when they lacked the capacity to form the requisite intent due to intoxication.

As a result, the court quashed the conviction and ordered a retrial with the availability of the defence of intoxication. The court's decision clarified the scope of Part IIA and its application to offences involving recklessness, providing guidance for future cases involving intoxication defences in similar contexts.

Orders

Orders of the court

An offence under s35 of the Crimes Act of recklessly causing grievous bodily harm is not a crime of specific intent for the purposes of Part IIA - Intoxication

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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Medium Neutral Citation:	R v Brady [2012] NSWDC 222
Hearing dates:	5 -12 November
Decision date:	13 November 2012
Jurisdiction:	Criminal
Before:	Blackmore SC DCJ
Decision:	An offence under s35 of the Crimes Act of recklessly causing grievous bodily harm is not a crime of specific intent for the purposes of Part IIA - Intoxication
Catchwords:	CRIMINAL LAW - Intoxication
Legislation Cited:	Crimes Act
Cases Cited:	Blackwell v R [2-11] NSWCCA 93 Grant v R (2002) 131 AcrimR 523 at [95] DPP v Majewski [1977] AC 443 Ilioski v R [2006] NSWCCA 164
Texts Cited:	Outlines of Criminal Law 19th Ed
Category:	Principal judgment
Parties:	The Crown Martin Terrence Brady
Representation:	Mr C Everson - Crown Mr B Levet - Accused
File Number(s):	2010/377753