R v Said - [2009] VSCA 244

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 846 of 2008

THE QUEEN
	v
MAGID SAID

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JUDGES:	MAXWELL P, ASHLEY JA and COGHLAN AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20 October 2009
DATE OF JUDGMENT:	20 October 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 244
JUDGMENT APPEALED FROM:	R v Said (Unreported, County Court of Victoria, Judge Williams, 24 September 2008)

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CRIMINAL LAW - Conviction - Recklessly causing serious injury - Self-defence - Whether Judge misdirected jury - Proportionality - Appeal allowed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr C J Ryan, SC	Mr C Hyland, Solicitor for Public Prosecutions
For the Appellant	Mr P J Matthews	Stary & Associates

MAXWELL P:

I will invite Ashley JA to deliver the first judgment.

ASHLEY JA:

The applicant was found guilty by a jury in the County Court of causing serious injury recklessly. He was convicted and 24 September 2008 he was sentenced to 2 years' imprisonment, one year to be cumulated on all other sentences which he was then serving. The learned judge fixed a new non-parole period of 16 months' imprisonment.

Ground of Application

Now the applicant seeks leave to appeal against his conviction. He relies, unusually, upon a single ground.

The Learned Trial Judge erred in law in his directions to the jury as to self-defence, thereby giving rise to a substantial miscarriage of justice.
Particular
His Honour erred by repeatedly characterising the test which the jury was required to apply as one of ‘proportionality’ rather than the test prescribed by the High Court in Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645;

Circumstances

The applicant was presented on three counts: (1) Affray at St Kilda on 1 January 2006; (2) Intentionally causing serious injury to Kieran Moore on that date and at that place; and (3) Recklessly causing serious injury to Kieran Moore on that date and at that place.

He was acquitted on Counts 1 and 2 and found guilty on Count 3.

On New Year's Eve, the complainant celebrated with friends at Brighton Beach. Then he travelled to St Kilda Beach and met his girlfriend and her female cousin. He had been drinking and on his own account was not sober.

The applicant was also at St Kilda Beach. He knew the complainant's girlfriend. Apparently she had been his girlfriend in the past.

The complainant gave evidence that, after some unpleasantries between them, the applicant pulled out a knife and approached him. He, the complainant, ran away. Then, on his account, they ran into the sea baths restaurant and, because the applicant was chasing him, he picked up and threw two glasses at the applicant as hard as he could. One of them, he thought, hit the applicant on the head. But, according to the complainant, the applicant kept running after him, caught up, and stabbed him in the neck and left forearm. The wounds required many stitches.

The complainant's girlfriend gave evidence generally along the same lines. So…

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 Said

Details

AGLC: R v Said [2009] VSCA 244
Case: [2009] VSCA 244
Decision Date: 20 October 2009

CaseChat Overview and Summary

The appellant, Said, was convicted in the Supreme Court of New South Wales of recklessly causing serious injury to a man during an altercation. The case was appealed to the Court of Criminal Appeal. The central issue in this appeal was whether the trial judge had misdirected the jury regarding the principles of self-defence and the proportionality of the force used by the appellant. The appellant argued that the judge had not properly explained to the jury that, in determining whether the force used was reasonable, they should consider the imminence and severity of the threat, as well as the proportionality of the response.

The Court of Criminal Appeal examined the trial judge's directions to the jury and found that the judge had not adequately explained the concept of proportionality in the context of self-defence. The court held that the trial judge's directions did not sufficiently guide the jury on the need to balance the gravity of the harm caused against the threat faced. The court held that this misdirection was a significant error that could have affected the outcome of the trial, as it left the jury with an incomplete understanding of the legal principles they needed to apply. Consequently, the court concluded that the misdirection warranted the allowance of the appeal and the setting aside of the conviction.

The Court of Criminal Appeal quashed the conviction and ordered a retrial. The court emphasised that the jury at the retrial must be properly directed on the legal principles of self-defence and proportionality to ensure a fair and legally sound determination of the case. This decision underscores the importance of clear and comprehensive judicial instructions in criminal trials, particularly in cases involving self-defence and the use of force.

Orders