McKay v R [2014] NSWCCA 187

McKay v R [2014] NSWCCA 187

It was open to the jury, on the evidence, to acquit on count 1 (recklessly cause grievous bodily harm) but convict on count 2 (assault occasioning actual bodily harm), either on the basis that the applicant did not realise the possibility of grievous bodily harm or that there was a reasonable doubt as to what, if anything, the applicant held in his hand during the assault. The jury's verdict was not unreasonable or unsupported by the evidence. The sentencing judge's findings as to the existence of an object in the applicant's hand were open to be made beyond reasonable doubt.

Jurisdiction
Australia
Judgment Date
17 September 2014
Procedural Posture
Criminal Appeal / Appeal Against Conviction and Sentence
Outcome
Leave to appeal granted in relation to both conviction and sentence; appeal dismissed.
Legal Topics
['conviction Appeal' 'appeal Against Sentence' 'assault Occasioning Actual Bodily Harm' 'jury Reasoning' 'factual Inconsistency' 'standard of Proof' 'sentencing']
['criminal Law'] ['conviction Appeal' 'appeal Against Sentence' 'assault Occasioning Actual Bodily Harm' 'jury Reasoning' 'factual Inconsistency' 'standard of Proof' 'sentencing']

Case Brief

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Procedural Posture

Criminal Appeal / Appeal Against Conviction and Sentence

Legal Issues

  1. 1 ['Whether the verdict of the jury was capable of being supported by the evidence' 'Whether the jury adopted an inappropriate line of reasoning in deciding counts' 'Whether inconsistency in acquitting on primary but convicting on secondary charge made the verdict unreasonable' 'Whether findings of fact at sentencing were in error']

Ratio Decidendi

It was open to the jury, on the evidence, to acquit on count 1 (recklessly cause grievous bodily harm) but convict on count 2 (assault occasioning actual bodily harm), either on the basis that the applicant did not realise the possibility of grievous bodily harm or that there was a reasonable doubt as to what, if anything, the applicant held in his hand during the assault. The jury's verdict was not unreasonable or unsupported by the evidence. The sentencing judge's findings as to the existence of an object in the applicant's hand were open to be made beyond reasonable doubt.

Court Disposition

Leave to appeal granted in relation to both conviction and sentence; appeal dismissed.

Orders

  • ['Leave to appeal against conviction granted but appeal dismissed' 'Leave to appeal against sentence granted but appeal dismissed']