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R v Pearson

R v Pearson

Case [2002] NSWCCA 429 24 December 2002

Intentional Assault

Malicious Infliction of Grievous Bodily Harm

Self-Defence

Aggravated & Exemplary Damages

Jurisdiction

Criminal Law

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Reported Decision:
137 A Crim R 419

New South Wales

Court of Criminal Appeal

CITATION: Regina v Pearson [2002] NSWCCA 429

FILE NUMBER(S): CCA 60245/02

HEARING DATE(S): 18/10/02

JUDGMENT DATE:
24 December 2002

PARTIES :

Regina
Andrew John Pearson (Appellant)

JUDGMENT OF: Giles JA at 1; Bell J at 2; Smart AJ at 94

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 00/41/0164

LOWER COURT JUDICIAL
OFFICER : Goldring DCJ

COUNSEL : GIO Rowling (Crown)
DG Dalton (Appellant)

SOLICITORS: S E O'Connor
Nikola Velcic & Associates (Appellant)

LEGISLATION CITED: Regina v Clarke (1995) 78 A Crim R 226
Crimes Act (NSW) 1900
Crimes (Sentencing Procedure) Act 1999

CASES CITED:
M v The Queen (1994) 181 CLR 487
MacKenzie v The Queen (1996) 190 CLR 348
MFA v the Queen [2002] HCA 53
Jones v The Queen (1997) 191 CLR 439
Regina v Barreto (unreported) NSWCCA, 29 September 1993
R v Condon (1995) 83 A Crim R 335
R v Lardner (unreported) NSWCCA, 10 September 1998
R v Safwan (1987) 8 NSWLR 97
The Queen v De Simoni (1981) 147 CLR 383
Zecevic v DPP (1987) 162 CLR 645

DECISION: Appeal against conviction dismissed; Leave to appeal against the sentence granted; Appeal dismissed

IN THE COURT OF
CRIMINAL APPEAL

60245/02

GILES JA
BELL J
SMART AJ

24 December 2002

REGINA v Andrew John PEARSON
Judgment

Introduction

1 GILES JA: I agree with Bell J.

2 BELL J: Andrew John Pearson appeals against his convictions on each of three counts and seeks leave to appeal against the severity of the sentences imposed upon him following his trial in the District Court at Wollongong on charges arising out of an incident on 28 April 2000 at Kemblawarra in which he is said to have assaulted his estranged wife and her partner.

3 On 14 November 2001 in the Wollongong District Court the appellant was jointly arraigned with his cousin, David Leslie Jenkins (“Jenkins”), on an indictment charging him with the following offences:

(i) On 28 April 2000, at Kemblawarra, in the State of New South Wales, did maliciously inflict grievous bodily harm upon Kane Andrew Thickpenny with intent to do grievous bodily harm to Kane Andrew Thickpenny;

and in the alternative

(ii) On 28 April 2000, at Kemblawarra, in the State of New South Wales, did maliciously inflict grievous bodily harm upon Kane Andrew Thickpenny;

(iii) On 28 April 2000, at Kemblawarra, in the State of New South Wales, did maliciously wound Kane Andrew Thickpenny;

(iv) On 28 April 2000, at Kemblawarra, in the State of New South Wales, did assault Tanya Shirley Pearson thereby occasioning to her actual bodily harm.

4 The appellant and Jenkins pleaded not guilty to each of the counts and stood their trial. On 5 December 2001 the jury returned verdicts convicting the appellant of counts one, three and four. Jenkins was acquitted of all counts.

5 Count one charged the appellant with an offence contrary to s 33 of the Crimes Act

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 Pearson

Details

AGLC: R v Pearson [2002] NSWCCA 429
Case: [2002] NSWCCA 429
Decision Date: 24 December 2002

CaseChat Overview and Summary

The Court of Criminal Appeal was asked to consider an appeal by Andrew John Pearson against his convictions and sentences. The appeal against conviction was dismissed and leave to appeal against sentence was granted but the appeal was ultimately dismissed. Pearson had been convicted of maliciously inflicting grievous bodily harm with intent to do grievous bodily harm, maliciously wounding, and assaulting his estranged wife's partner, causing her actual bodily harm. The appeal against conviction was based on four grounds: the trial judge's directions to the jury on the elements of the offence of grievous bodily harm, the adequacy of the directions on the elements of the offence of malicious wounding, the adequacy of the directions on self-defence, and the contention that the verdicts were unreasonable. The appeal against sentence was based on the severity of the sentence. The Court found that the directions on the elements of the offence of grievous bodily harm were adequate. It found that the directions on the elements of the offence of malicious wounding were adequate despite the trial judge's failure to direct the jury that the Crown must negative self-defence. The Court found that the directions on self-defence were adequate. It found that the verdicts were not unreasonable. The Court found that the sentence was not manifestly excessive and dismissed the appeal against sentence.

Orders