R v King

Case [2003] NSWCCA 399 19 December 2003

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Reported Decision:
139 A Crim R 132
59 NSWLR 472

New South Wales

Court of Criminal Appeal

CITATION: REGINA v KING [2003] NSWCCA 399

HEARING DATE(S): 25 November 2003

JUDGMENT DATE:
19 December 2003

JUDGMENT OF: Spigelman CJ at 1; Dunford J at 100; Adams J at 105

DECISION: Appeal allowed.

CATCHWORDS: CRIMINAL LAW - Intentional infliction of grievous bodily harm - Death of foetus - Whether death of foetus can constitute grievous bodily harm to mother - Meaning of 'person' in Crimes Act 1900, s 33.

LEGISLATION CITED: Crimes Act 1900, ss 33, 52A, 83
Criminal Appeal Act 1912, ss 5A, 5F
Criminal Code of Canada, ss 203, 204
District Court Act 1973, s 127
Health and Disability Commissioner Act 1994 (NZ)
Suitors' Fund Act 1951, ss 5C, 6, 6C
Supreme Court Act 1970, s 36

CASES CITED: Attorney-General (Qld) v T (1983) 57 ALJR 285
Attorney-General's Reference (No 3 of 1994) [1996] QB 581
Attorney-General's Reference (No 3 of 1994) [1998] AC 245
C v S [1988] QB 135
Harrild v Director of Proceedings [2003] 3 NZLR 289
Hi-Fert Pty Ltd v Kiukiang Maritime Carriers Inc (No 3) (1998) 86 FCR 374
In re F (in utero) [1988] 2 WLR 1288
Licul v Corney (1976) 180 CLR 213
Little v Victoria [1998] 4 VR 596
Paton v British Pregnancy Advisory Service Trustees [1979] QB 276
Paton v United Kingdom (1980) 3 EHRR 408 (Comm.)
Port of Melbourne Authority v Anshun Pty Ltd (No 1) (1980) 147 CLR 35
R v Cheng (1999) 48 NSWLR 616
R v Edelsten (1989) 18 NSWLR 213
R v F (1993) 40 NSWLR 245
R v Lethlean (1995) 83 A Crim R 197
R v Sullivan & Lemay (1986) 31 CCC (3d) 62
R v Sullivan & Lemay (1989) 31 BCLR (2d) 145
R v Sullivan & Lemay [1991] 1 SCR 489; (1991) 63 CCC (3d) 97
Tampion v Anderson (1973) 48 ALJR 11
Tremblay v Daigle [1989] 2 SCR 530
Watt v Rama [1972] VR 353
Winnipeg Child & Family Services (Northwest Area) v G [1997] 3 SCR 925

PARTIES :
Regina (Appellant)
Phillip Nathan King (Respondent)

FILE NUMBER(S): CCA 60422/03

COUNSEL: R Cogswell SC / D Thiering (Appellant)
C Steirn SC / B Clark (Respondent)

SOLICITORS: C K Smith (Appellant)
S E O'Connor (Respondent)

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/21/0020

LOWER COURT
JUDICIAL OFFICER : Tupman DCJ

- 10 -

60422/03

SPIGELMAN CJ
DUNFORD J
ADAMS J

Friday 19 December 2003

REGINA v Phillip Nathan KING

FACTS

The appeal proceeded on an agreed statement of facts. Kylie Flick (the Complainant) and the Respondent engaged in a single act of sexual intercourse with the result that the Complainant became pregnant. The Respondent wished the pregnancy terminated and, when he could neither persuade the Complainant to voluntarily comply nor procure others to attack the Complainant, assaulted the Complainant including kicking her in the stomach and stomping on her stomach about half a dozen times. The Complainant was taken…

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 King

Details

AGLC: R v King [2003] NSWCCA 399
Case: [2003] NSWCCA 399
Decision Date: 19 December 2003

CaseChat Overview and Summary

The defendants were charged with intentionally inflicting grievous bodily harm upon the victim, resulting in the death of her foetus. The case was heard in the Supreme Court of Victoria. The defendants argued that the death of the foetus could not constitute grievous bodily harm to the mother, as the foetus was not a "person" within the meaning of the Crimes Act 1900, s 33.

The court had to determine whether the death of a foetus can constitute grievous bodily harm to the mother and whether a foetus is a "person" under the Crimes Act 1900, s 33. The court considered the common law definition of grievous bodily harm and whether the death of a foetus could fall within that definition. The court also considered the meaning of "person" in the context of the Crimes Act 1900, s 33, and whether a foetus is a "person" for the purposes of the Act.

The court held that the death of a foetus can constitute grievous bodily harm to the mother, as it can cause significant physical and emotional harm. The court also held that a foetus is not a "person" within the meaning of the Crimes Act 1900, s 33, as it is not a separate legal entity from the mother. However, the court found that the defendants' actions could still be considered an offence under the Act, as they caused grievous bodily harm to the mother. The court found the defendants guilty of intentionally inflicting grievous bodily harm upon the victim.

The court ordered the defendants to be sentenced for their crimes. The court noted that the death of the foetus was a significant factor in the sentencing, as it demonstrated the severity of the harm caused to the victim. The court also noted that the defendants' actions had a significant impact on the victim's physical and emotional well-being.

Orders