R v Johnson - [2019] ACTSC 179

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Johnson
Citation:	[2019] ACTSC 179
Hearing Date:	16 July 2019
DecisionDate:	16 July 2019
Before:	Elkaim J
Decision:	See [22]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – jury trial – re-trial – primary offence of recklessly inflict grievous bodily harm – offender found not guilty of primary offence but guilty of statutory alternative offence of inflict actual bodily harm CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – inflict actual bodily harm – consideration of harm suffered by the victim – broken jaw – whether or not injury suffered was grievous bodily harm
Legislation Cited:	Crimes Act 1900 (ACT) ss 23, 49 Crimes (Sentencing) Act 2005 (ACT) ss 33(1), 6, 7, 10
Cases Cited:	R v Barbaro (Unreported, Supreme Court of the Australian Capital Territory, Justice Penfold, 17 June 2010) R v Forsyth [2015] ACTSC 326 R v Howell [2018] ACTSC 155 R v Manevski (No 2) [2016] NSWSC 1465 R v Sharma [2016] ACTSC 180
Parties:	The Queen (Crown) Carl Johnson (Offender)
Representation:	Counsel S Naidu (Crown) J Ong (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender)
File Numbers:	SCC 332 of 2017

ELKAIM J:

The offender was found guilty by a jury, on 28 March 2019, of the offence of inflicting actual bodily harm to a Mr Anthony Soldo during an incident on 6 July 2014. This is an offence contrary to s 23 of the Crimes Act 1900 (ACT) (Crimes Act), and carries a maximum penalty of 5 years’ imprisonment. The offence was the second statutory alternative offence, as outlined in s 49 of the Crimes Act, to the primary count in the indictment, namely that he had recklessly inflicted grievous bodily harm on the complainant. The first alternative was that he had caused grievous bodily harm to the complainant.

The complainant had been struck twice by the offender. The first strike occurred inside the Academy nightclub. The second strike was on the footpath outside the club. Following the strike outside the club the victim was rendered unconscious and taken to hospital where it was discovered that he had a fractured jaw.

The Crown case was that the fractured jaw had been inflicted by the strike outside the club. The defence said that, primarily based on the evidence of an expert, the jury could not be satisfied beyond reasonable doubt that the fractured jaw was a product of the first strike.

The defence however also advanced a case that said that even if the fractured jaw had been sustained in the second strike it did not amount to grievous bodily harm.

The result is that the jury verdict could contemplate either that the jury was not satisfied beyond reasonable doubt that the second strike had caused the fractured jaw or that the second strike did cause the fractured jaw but the jury was not satisfied that the injury amounted to grievous bodily…

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 Johnson

Details

AGLC: R v Johnson [2019] ACTSC 179
Case: [2019] ACTSC 179
Decision Date: 16 July 2019

CaseChat Overview and Summary

In the case of R v Johnson, the defendant was initially charged with the offence of recklessly inflicting grievous bodily harm. After a trial, the jury found the defendant not guilty of the primary offence but guilty of the statutory alternative offence of inflicting actual bodily harm. The defendant sought a re-trial on the primary offence, which was denied by the court. The case involved a dispute over the appropriate legal interpretation of the harm inflicted on the victim and the applicability of the statutory alternative offence in the circumstances of the case.

The court was required to determine whether the defendant was entitled to a re-trial on the primary offence, and if not, whether the sentence imposed for the statutory alternative offence was appropriate. The key legal issue was whether the injury sustained by the victim, a broken jaw, constituted grievous bodily harm, and if so, whether the jury's finding of the statutory alternative offence was legally valid. The court also needed to consider the appropriate sentence for the offence of inflicting actual bodily harm.

The court held that the defendant was not entitled to a re-trial on the primary offence as the jury's verdict on the statutory alternative offence was a valid alternative verdict. The court found that the injury to the victim, a broken jaw, did not constitute grievous bodily harm, which typically involves more serious injuries such as disfigurement or the loss of a limb. The court considered the sentence imposed for the offence of inflicting actual bodily harm to be appropriate given the circumstances of the case. The court emphasised the importance of the jury's role in determining the appropriate charge based on the evidence presented.

The final orders of the court were to uphold the denial of a re-trial on the primary offence and to affirm the sentence imposed for the offence of inflicting actual bodily harm. The court confirmed that the statutory alternative offence was correctly applied in the circumstances and that the sentence was appropriate given the harm suffered by the victim.

Orders

Orders of the court

See [22]

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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