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Court of Criminal Appeal 8 June 2000

Regina v Ismail

[2000] NSWCCA 217

Assault & violence
CRIMINAL LAW AND PROCEDURE SUFFICIENCY OF CHARGE TO JURY SEVERITY OF SENTENCE

Citation: Regina v Ismail [2000] NSWCCA 217
Court: NSW Court of Criminal Appeal
Date: 8 June 2000
Judge(s): Giles JA, Grove J, Greg James J

Background

Following a confrontation on a public street in Ultimo in October 1997, a female police sergeant was struck and injured when the appellant moved into the driver's seat of a vehicle and drove it at her. She had stopped the vehicle after witnessing a traffic manoeuvre and had identified herself as a police officer. The appellant, who had been a passenger, exchanged seats with the driver before accelerating toward the sergeant, causing her to fall across the bonnet and have her leg run over by the rear wheel.

The appellant was tried in the Sydney District Court before Latham DCJ and a jury. He was convicted on the principal count of malicious wounding with intent to cause grievous bodily harm. The sole factual issue at trial was whether the appellant was the driver of the vehicle at the relevant time. The admitted facts included that a wounding had occurred and that the victim had suffered lacerations and contusions.

The appellant appealed against both conviction and sentence. On conviction, he argued the trial judge had misdirected the jury. On sentence, he challenged a total of seven years penal servitude as excessive.

  • Whether the trial judge adequately distinguished the elements of malicious wounding with intent to cause grievous bodily harm (the principal count) from the lesser alternative of malicious wounding (the third count)
  • Whether the trial judge's comment that there had been "no real dispute" about the driver's intention to cause serious injury constituted a misdirection that deprived the appellant of a real chance of acquittal
  • Whether the sentence of seven years penal servitude was manifestly excessive in all the circumstances

Decision

The Court of Criminal Appeal rejected the argument that the trial judge had failed to distinguish properly between the first and third counts. Each juror had been supplied with a copy of the indictment from the outset, meaning the distinction between the two counts was readily apparent on the face of the document. The trial judge had also separately explained the ingredients of each count and repeatedly directed the jury that the outcome turned on whether they accepted the appellant was the driver.

The Court addressed the specific comment about intention, in which the trial judge observed that there had been "no real dispute" about whether the driver intended to cause serious injury. The Court accepted that the jury might theoretically have considered whether the driver intended only to frighten rather than to cause really serious bodily harm. However, it was open to the trial judge to make such a comment in the context of how the trial was actually conducted. The jury had been given conventional directions about the judge and jury's respective roles, and the comment did not deprive the appellant of a real chance of acquittal.

On sentence, the Court acknowledged the sentence might be viewed as severe but found it was warranted. Aggravating factors included that the appellant knew the victim was a police officer, that his conduct was premeditated in persuading the original driver to change seats, and that his criminal history disclosed a pattern of behaviour and hostility toward police in traffic-related matters. The most significant mitigating factor was the appellant's age of 23 at the time of sentencing, which the trial judge applied in finding special circumstances to extend the parole period. No error in the sentencing judge's findings or assessment was identified.

Orders Made

  • Appeal against conviction dismissed
  • Leave to appeal against sentence granted, but that appeal also dismissed

Key Takeaways

  • A trial judge's comment characterising an issue as not genuinely in dispute will not constitute a misdirection where it accurately reflects how the trial was conducted, and where the jury has been properly directed on the elements of each charge and the respective roles of judge and jury.
  • Supplying jurors with a copy of the indictment from the outset of a trial is a relevant consideration when assessing whether the jury could appreciate the distinction between a principal count and an expressly pleaded lesser alternative.
  • The Court of Criminal Appeal confirmed that the Crown is entitled to expressly plead malicious wounding as a separate alternative count even where it is already an available verdict on the principal count of malicious wounding with intent to cause grievous bodily harm.
  • Aggravating factors in sentencing for deliberate wounding can include knowledge that the victim was a police officer, premeditation in assuming control of the means of harm, and a prior history demonstrating a pattern of similar conduct.
  • In dismissing the sentence appeal, the Court found that a sentence of seven years for the deliberate running down of a police officer, against a maximum of 25 years, fell within the range of a sound exercise of sentencing discretion.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), s 184 (formal admissions at trial)

Cases:
- R v Asquith (1994) 72 A Crim R 251