AW v R [2023] NSWCCA 92

AW v R [2023] NSWCCA 92

The trial judge gave inconsistent and erroneous directions on recklessness, including written directions requiring only foresight of immediate and unlawful violence however slight or unspecified harm, and never correctly directed the jury that the Crown had to prove foresight of possible actual bodily harm. Those directions were productive of uncertainty or confusion about an essential element, were prejudicial, and could have affected the verdict, causing a miscarriage of justice. In the circumstances, because the Court could not be satisfied that the jury understood the mental element required for guilt, it was not appropriate to apply the proviso. The conviction on Count 2 was quashed,...

Jurisdiction
Australia
Judgment Date
21 April 2023
Procedural Posture
Criminal Appeal Against Conviction / Application for Leave to Appeal and Appeal From District Court Conviction; Consequential Orders as to Retrial and Re Sentence
Outcome
Leave to appeal granted; appeal allowed; conviction on Count 2 quashed; new trial ordered on Counts 2 and 3; aggregate sentence quashed; undisturbed convictions remitted for re-sentence.
Legal Topics
['recklessly Inflicting Grievous Bodily Harm' 'jury Directions' 'misdirection on Mental Element' 'miscarriage of Justice' 'proviso' 'aggregate Sentence' 're Sentencing']
['criminal Law' 'criminal Procedure' 'appeals'] ['recklessly Inflicting Grievous Bodily Harm' 'jury Directions' 'misdirection on Mental Element' 'miscarriage of Justice' 'proviso' 'aggregate Sentence' 're Sentencing']

Case Brief

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Procedural Posture

Criminal Appeal Against Conviction / Application for Leave to Appeal and Appeal From District Court Conviction; Consequential Orders as to Retrial and Re Sentence

Legal Issues

  1. 1 ['Whether the trial judge misdirected the jury about the mental element of recklessness for an offence under s 35(2) of the Crimes Act 1900 (NSW).' 'Whether the misdirections caused a miscarriage of justice within s 6(1) of the Criminal Appeal Act 1912 (NSW).' 'Whether the proviso should be applied on the basis that no substantial miscarriage of justice actually occurred.' 'Whether the undisturbed convictions should be re-sentenced by the Court of Criminal Appeal or remitted to the District Court for re-sentence.']

Ratio Decidendi

The trial judge gave inconsistent and erroneous directions on recklessness, including written directions requiring only foresight of immediate and unlawful violence however slight or unspecified harm, and never correctly directed the jury that the Crown had to prove foresight of possible actual bodily harm. Those directions were productive of uncertainty or confusion about an essential element, were prejudicial, and could have affected the verdict, causing a miscarriage of justice. In the circumstances, because the Court could not be satisfied that the jury understood the mental element required for guilt, it was not appropriate to apply the proviso. The conviction on Count 2 was quashed,...

Court Disposition

Leave to appeal granted; appeal allowed; conviction on Count 2 quashed; new trial ordered on Counts 2 and 3; aggregate sentence quashed; undisturbed convictions remitted for re-sentence.

Orders

  • ['Leave to appeal granted.' 'Appeal allowed.' 'Quash the conviction in respect of Count 2 on the indictment.' 'Order a new trial in respect of Counts 2 and 3 on the indictment.' 'Quash the aggregate sentence imposed in the District Court on 21 May 2021.' 'Remit the undisturbed convictions on Counts 4, 5, 6 and 8 of...