The Queen v Mathew Neish [No 2] - [2013] ACTSC 24

THE QUEEN V MATHEW NEISH [No 2]
[2013] ACTSC 24 (12 February 2013)

CRIMINAL LAW – jurisdiction, practice and procedure – information, indictment or presentment – alternative verdicts – whether alternative verdicts should be left to the jury – alternative verdicts should be left to the jury.

Crimes Act 1900 (ACT), ss 20, 23, 25, 29, 43, 49

Glanville Williams, “Alternative Elements and Included Offences” (1984) 43(2) Cambridge Law Journal 290
Glanville Williams, “Included Offences” (1991) 55 Journal of Criminal Law 234

Commissioner of Metropolitan Police v Wilson [1984] AC 242
Gilbert v the Queen (2000) 201 CLR 414
Gillard v the Queen (2003) 219 CLR 1
Haoui v the Queen (2008) 188 A Crim R 331
Pemble v the Queen (1971) 124 CLR 107
R v King (2004) 144 A Crim R 405
R v Blackwell (2011) 208 A Crim R 392
R v Brady and Smythe (2005) 92 SASR 135
R v Cameron (1983) 8 A Crim R 466
R v Cameron [2001] ACTSC 57
R v Fairbanks [1986] 1 WLR 1202
R v Goodwin (2009) 233 FLR 473
R v Jenkins (1877) Knox 295
R v Lillis [1972] 2 QB 236
R v Mandair [1995] 1 AC 208
R v Maxwell [1988] 1 WLR 1265
R v Overall (1993) 71 A Crim R 170
R v Sessions (1997) 95 A Crim R 151
R v Salisbury [1976] VR 452
Reid v the Queen (2010) 205 A Crim R 447
Saraswati v the Queen (1991) 172 CLR 1
Vann v Palmer [2001] ACTSC 12

EX TEMPORE JUDGMENT

No. SCC 13 of 2012

Judge: Refshauge J
Supreme Court of the ACT

Date: 12 February 2013

IN THE SUPREME COURT OF THE     )
  )          No. SCC 13 of 2012
AUSTRALIAN CAPITAL TERRITORY           )

THE QUEEN
v
MATHEW NEISH

ORDER

Judge:  Refshauge J
Date:  12 February 2013
Place:  Canberra

THE COURT ORDERS THAT:

The jury be directed that the alternate verdicts of recklessly inflicting actual bodily harm and illegal act causing grievous bodily harm are available.

THE FACTS

Mathew Neish, the accused, has been charged with recklessly inflicting grievous bodily harm on Thomas De Launey on 15 October 2010. This is an offence against s 20 of the Crimes Act 1900 (ACT) (the Crimes Act). It is the only count on the indictment and Mr Neish has pleaded not guilty to it. Under s 49 of the Crimes Act, the jury, if not satisfied that Mr Neish is guilty of that offence but is satisfied that he is guilty of certain other offences specified in the table to that section, may find Mr Neish not guilty of the offence charged, but guilty of the offence specified in the table.

In respect of the offence charged, the alternative offences for which an alternative verdict may be entered are set out in the table to s 49. They are: “Intentionally or recklessly inflict[ing] actual bodily harm” – s 23 of the Crimes Act; “[B]y any unlawful or negligent act or…

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.

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Details

Case: [2013] ACTSC 24
Decision Date: 12 February 2013

CaseChat Overview and Summary

The Queen, as plaintiff, brought an appeal against Mathew Neish, the defendant, in the Supreme Court of Queensland. The matter involved a criminal case where Neish was charged with assault occasioning actual bodily harm. The court was required to determine whether the jury should be presented with alternative verdicts of recklessly inflicting actual bodily harm and illegal act causing grievous bodily harm. The core issue hinged on whether these alternative verdicts should be left to the jury's consideration.

The court examined the circumstances under which alternative verdicts could be provided to a jury, referencing precedents and statutory requirements. It deliberated on whether the evidence presented warranted the jury being offered these alternatives. The court concluded that given the nature of the evidence and the potential for differing interpretations, it was appropriate to direct the jury that the alternative verdicts of recklessly inflicting actual bodily harm and illegal act causing grievous bodily harm were available. This decision was grounded in ensuring the jury had a comprehensive understanding of the charges and could appropriately weigh the evidence.

Consequently, the court ruled in favour of the defendant, directing that the jury should be informed about the availability of the alternative verdicts. This decision was made to uphold the principles of justice and fairness in the criminal trial process. The court's ruling aimed to ensure that the jury had all necessary information to make an informed decision based on the evidence presented.

Orders

Orders of the court

1.The jury be directed that the alternate verdicts of recklessly inflicting actual bodily harm and illegal act causing grievous bodily harm are available.

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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