R v Kaufusi - [2005] NSWCCA 434

CITATION:
R v KAUFUSI [2005] NSWCCA 434

HEARING DATE(S): 26 September 2005

JUDGMENT DATE:

14 December 2005

JUDGMENT OF:
McClellan CJ at CL at 1; Hislop J at 2; Rothman J at 3

DECISION:
(a) Leave to appeal against sentence be refused;; (b) Appeal be dismissed.

CATCHWORDS:
Criminal Law - appeal against conviction - maliciously inflicting grievous bodily harm - requirement to direct jury on self defence - no reasonable hypothesis for self-defence - Rule 4 of Criminal Appeal Rules - whether verdict unreasonable and unsupported by evidence

LEGISLATION CITED:

Crimes Act 1900
Criminal Appeal Rules
Criminal Appeal Act 1912

CASES CITED:
Pemble v The Queen (1971) 124 CLR 107
Mansini v DPP [1942] A C 1
Kwaku Mensah v The King [1946] AC 83
Barca v The Queen (1975) 133 CLR 82
R v Clarke (1995) 78 A Crim R 226
R v Abusafiah (1991) 24 NSWLR 531
M v The Queen (1994) 181 CLR 487
MFA v The Queen (2002) 213 CLR 606

PARTIES:
Moli KAUFUSI
The Queen

FILE NUMBER(S):
CCA 2005/1207

COUNSEL:
Mr J Bennett SC
Mr G Nicholson QC

SOLICITORS:
A - Mr William Whitby
C - S Kavanagh

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
04/11/0533

LOWER COURT JUDICIAL OFFICER:
Blackmore DCJ

- 1 -

2005/1207

McCLELLAN CJ at CL
HISLOP J
ROTHMAN J

14 December 2005

Moli KAUFUSI v REGINA

Judgment

1 McCLELLAN CJ at CL: I agree with Rothman J.

2 HISLOP J: I agree with Rothman J.

3 ROTHMAN J: Moli Kaufusi was convicted of maliciously inflicting grievous bodily harm and was sentenced to imprisonment for three years with a non-parole period of 15 months. Mr Kaufusi appealed both the conviction and the sentence, but on hearing, has not sought to agitate leave to appeal against sentence.

Facts

4 On 2 November 2002 the appellant, Mr Kaufusi, was dining with his girlfriend at a restaurant in Sydney. They started to argue. Mr Kaufusi had suggested that the couple separate and a heated argument ensued. The girlfriend, Ms Noble, threw a glass of wine at Mr Kaufusi and they left the restaurant and moved into the car park. In the car park Ms Noble attacked, both physically and verbally, Mr Kaufusi who retaliated. The physical altercation which ensued included Mr Kaufusi chasing Ms Noble, sitting on top of her and acting aggressively. He either banged her head against the concrete floor or hit her extremely hard in the head or both. It attracted the attention of people in neighbouring buildings and the incident was reported to the police. Mr Kaufusi and Ms Noble got into the car and drove towards Norton Street. After a short distance, Mr Kaufusi got out of the car and started walking away.

5 Ms Noble also got out of the car and attempted to seek assistance from passers by and was, ultimately, admitted to the backseat of a passing vehicle. One of the passengers in that vehicle spoke with her and observed blood…

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 Kaufusi

Details

AGLC: R v Kaufusi [2005] NSWCCA 434
Case: [2005] NSWCCA 434
Decision Date: 14 December 2005

CaseChat Overview and Summary

In this case, the appellant, Kaufusi, appealed against his conviction for the offence of maliciously inflicting grievous bodily harm. The facts of the case were that the appellant had engaged in a physical altercation with the victim, resulting in the victim suffering significant injuries. The case was heard in the High Court of Australia. The primary legal issue before the court was whether the trial judge was required to direct the jury on the defence of self-defence, and if so, whether the verdict was unreasonable and unsupported by the evidence. The court had to consider whether there was a reasonable hypothesis for self-defence that could have been presented to the jury.

The High Court held that the trial judge was not required to direct the jury on the defence of self-defence because there was no reasonable hypothesis for self-defence. The court found that the evidence did not support any reasonable basis for the appellant to have acted in self-defence. The court also concluded that the verdict was not unreasonable or unsupported by the evidence, as the jury had properly considered all the evidence and found the appellant guilty beyond reasonable doubt. The court found that the appellant's actions were malicious and that there was no justification for the level of force used.

The High Court dismissed the appeal and upheld the conviction. The court found that the trial judge had correctly exercised their discretion in not directing the jury on the defence of self-defence, and that the jury's verdict was properly based on the evidence presented at trial. The final orders of the court were that the appeal be dismissed and that the conviction and sentence of the appellant be upheld.

Orders