Malicki v R; R v Malicki [2015] NSWCCA 162

Malicki v R; R v Malicki [2015] NSWCCA 162

The trial judge erred by directing the jury that the Crown had to prove that the only reason Ms Malicki struck Mr Lees was her belief that he would be called as a witness, but that error was wholly favourable to Ms Malicki because s 326(3) required only that the belief be a partial reason. A jury satisfied beyond reasonable doubt on the narrower, erroneous direction would necessarily have been satisfied on the correct statutory test and would have rejected self-defence; no substantial miscarriage of justice was shown and leave was refused on grounds 1 and 2. The jury's note about lack of unanimity did not show confusion and no error was shown in adjourning deliberations to the next day,...

Jurisdiction
Australia
Judgment Date
25 June 2015
Procedural Posture
Criminal Appeal Against Conviction and Crown Appeal Against Sentence / Court of Criminal Appeal of the Supreme Court of New South Wales
Outcome
Appeal against conviction dismissed; Crown appeal against sentence dismissed.
Legal Topics
['appeal Against Conviction' 'misdirection to Jury' 'witness Intimidation or Injury' 'joint Criminal Enterprise' 'self Defence' 'crown Appeal Against Sentence' 'manifest Inadequacy' 'intensive Correction Order']
['criminal Law' 'criminal Procedure' 'sentencing'] ['appeal Against Conviction' 'misdirection to Jury' 'witness Intimidation or Injury' 'joint Criminal Enterprise' 'self Defence' 'crown Appeal Against Sentence' 'manifest Inadequacy' 'intensive Correction Order']

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Procedural Posture

Criminal Appeal Against Conviction and Crown Appeal Against Sentence / Court of Criminal Appeal of the Supreme Court of New South Wales

Legal Issues

  1. 1 ['Whether the trial judge misdirected the jury with respect to the elements of the offence under s 326(2) of the Crimes Act 1900 (NSW).' 'Whether the trial judge misdirected the jury in response to its question concerning the interplay of joint criminal enterprise and self-defence.' 'Whether the trial judge failed to direct the jury in response to its question concerning inability to agree as to three elements of the count.' "Whether the sentence of 20 months' imprisonment to be served by way of an Intensive Correction Order was manifestly inadequate."]

Ratio Decidendi

The trial judge erred by directing the jury that the Crown had to prove that the only reason Ms Malicki struck Mr Lees was her belief that he would be called as a witness, but that error was wholly favourable to Ms Malicki because s 326(3) required only that the belief be a partial reason. A jury satisfied beyond reasonable doubt on the narrower, erroneous direction would necessarily have been satisfied on the correct statutory test and would have rejected self-defence; no substantial miscarriage of justice was shown and leave was refused on grounds 1 and 2. The jury's note about lack of unanimity did not show confusion and no error was shown in adjourning deliberations to the next day,...

Court Disposition

Appeal against conviction dismissed; Crown appeal against sentence dismissed.

Orders

  • ['In the appeal against conviction: Refuse leave in respect of grounds 1 and 2.' 'In the appeal against conviction: Appeal dismissed.' 'In the Crown appeal: Appeal dismissed.']