Quach v R [2008] NSWCCA 284

Quach v R [2008] NSWCCA 284

The trial Judge adequately identified the elements of the s 33 offence and the alternative s 35 offence, made clear that intent to do grievous bodily harm was required only for the s 33 offence, and gave an additional intention direction substantially following the Criminal Trial Courts Bench Book. The jury was also told that, despite identity being the real issue, it still had to examine all elements and that the Crown had to prove each element beyond reasonable doubt. In the circumstances, including evidence of a forceful kick to the face of a man on all fours, the directions did not permit the jury to treat proof that the appellant was the kicker as automatically establishing guilt.

Jurisdiction
Australia
Judgment Date
04 December 2008
Procedural Posture
Criminal Appeal Against Conviction / Judgment of the New South Wales Court of Criminal Appeal
Outcome
Appeal dismissed
Legal Topics
['appeal Against Conviction' 'jury Directions' 'mental Elements' 'maliciously Inflict Grievous Bodily Harm With Intent' 'maliciously Inflict Grievous Bodily Harm' 'identification Evidence' 'single Blow Injury']
['criminal Law' 'criminal Procedure' 'evidence'] ['appeal Against Conviction' 'jury Directions' 'mental Elements' 'maliciously Inflict Grievous Bodily Harm With Intent' 'maliciously Inflict Grievous Bodily Harm' 'identification Evidence' 'single Blow Injury']

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Procedural Posture

Criminal Appeal Against Conviction / Judgment of the New South Wales Court of Criminal Appeal

Legal Issues

  1. 1 ['Whether the trial Judge failed to adequately direct and distinguish for the jury the mental elements applicable to maliciously inflict grievous bodily harm with intent under s 33 of the Crimes Act 1900 and maliciously inflict grievous bodily harm under s 35(1)(b).' 'Whether the trial Judge erred by failing to direct the jury that finding beyond reasonable doubt that the appellant kicked the victim did not automatically require a verdict of guilty on one or other offence.']

Ratio Decidendi

The trial Judge adequately identified the elements of the s 33 offence and the alternative s 35 offence, made clear that intent to do grievous bodily harm was required only for the s 33 offence, and gave an additional intention direction substantially following the Criminal Trial Courts Bench Book. The jury was also told that, despite identity being the real issue, it still had to examine all elements and that the Crown had to prove each element beyond reasonable doubt. In the circumstances, including evidence of a forceful kick to the face of a man on all fours, the directions did not permit the jury to treat proof that the appellant was the kicker as automatically establishing guilt.

Court Disposition

Appeal dismissed

Orders

  • ['Leave granted to raise ground 2.' 'Appeal dismissed.']