R v Greenwood

[2014] NSWDC 50

District Court

New South Wales

Medium Neutral Citation:	R v Greenwood [2014] NSWDC 50
Hearing dates:	14 March 2014
Decision date:	14 March 2014
Before:	Berman SC DCJ
Decision:	Decline to state a case under s 5B of the Criminal Appeal Act
Catchwords:	CRIMINAL LAW - Judgment - Application to state a case after unsuccessful conviction appeal - Question of law or question of fact
Legislation Cited:	Criminal Appeal Act Crimes Act Evidence Act
Cases Cited:	Cassell v DPP [2000] NSWCA 226 Elias v DPP [2012] NSWCA 302 Hammond v R [2013] NSWCCA 93 Robinson v Woolworhts Kimited [2005] NSWCCA 302
Category:	Principal judgment
Parties:	The Crown Michael Francis Greenwood
Representation:	Counsel: Mr C Miralis - Appellant Solicitors: Director of Public Prosecutions - Respondent
File Number(s):	2012/402416

Judgment

1. HIS HONOUR: In June last year, Michael Francis Greenwood was convicted of an offence of assault occasioning actual bodily harm in Waverley Local Court. He appealed against that conviction. He came before me on 1 October 2012. I dismissed his appeal and confirmed his conviction. I have now been asked to state a case for the Court of Criminal Appeal pursuant to s 5B of the Criminal Appeal Act 1912.

1. It is important to note that questions that I can state are limited to those of law. The applicant has submitted what he says are three questions of law. The respondent says that they are not questions of law at all but are merely questions of fact. The questions of law which I am now asked to submit are as follows: One, for the subject offence being an offence contrary to s 59(1) of the Crimes Act 1900, can these facts support a finding beyond reasonable doubt that Mr Greenwood was not acting in self defence at the time of the assault in accordance with s 418 of the Crimes Act 1900?; Two, can these facts support a finding that Mr Greenwood was not acting in self defence in accordance with ss 418(1), (2), (2a) and (2b) of the Crimes Act 1900?; Three, on the findings of fact, was the conduct of Mr Greenwood capable of constituting self defence for the purposes of s 418(1), (2), (2a) and (2b) of the Crimes Act 1900?

1. It is important to note that it is not suggested that I have made any misstatement of the law in my judgment. Instead, the applicant says that it is only by looking at the facts that I have found that the error can be identified, that is that I have made a latent error. The suggestion is, I gather, that the facts are such that it would only be an unreasonable outcome if, given those facts, the judicial officer did not find that the prosecution had failed to negate self defence beyond reasonable doubt.

1. The stated case procedure is of some, by now, antiquity. It has undergone changes from time to time. For example, it used to be that there was an unseemly rush to interrupt a judge…