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Court of Criminal Appeal 25 March 2003

REGINA v. SAMPSON

[2003] NSWCCA 66

Assault & violence
CRIMINAL LAW CONVICTION APPEAL RELEVANT PRINCIPLES.

Citation: Regina v Sampson [2003] NSWCCA 66
Court: NSW Court of Criminal Appeal
Date: 25 March 2003
Judge(s): Meagher JA, Wood CJ at CL, Greg James J

Background

The appellant was convicted in the District Court of maliciously inflicting grievous bodily harm with intent to cause grievous bodily harm, contrary to s 33 of the Crimes Act 1900. The Crown alleged he punched the victim in the face with a beer glass during an altercation at the Ocean Beach Hotel at Umina on the night of 12 August 2001. The victim lost his left eye as a result of glass lacerations.

The victim was heavily intoxicated at the time and had only a hazy recollection of events. He did not see who struck him, nor did he see the appellant holding a beer glass. Another witness present was also heavily intoxicated and could not describe what had occurred in any meaningful detail.

The appellant appealed his conviction to the Court of Criminal Appeal on the basis that the verdict was unreasonable and could not be supported by the evidence.

  • Whether the jury's verdict of guilty was unreasonable or unable to be supported having regard to the evidence, under s 6(1) of the Criminal Appeal Act 1912
  • Whether the evidence was sufficient to permit the jury, acting reasonably, to be satisfied beyond reasonable doubt that the appellant had deliberately struck the victim in the face with a beer glass
  • Whether the Crown's separate appeal against the inadequacy of the sentence should be upheld

Decision

Greg James J (with whom Meagher JA and Wood CJ at CL agreed) applied the principles drawn from the High Court authorities on unreasonable verdicts, particularly from M (1994) 181 CLR 487 and MFA [2002] HCA 53. Those principles require the appellate court to assess whether it was open to the jury to be satisfied beyond reasonable doubt of guilt, having regard to the whole of the facts and circumstances.

The court noted that there was no direct evidence that the appellant had struck the victim with the beer glass. The victim himself did not see the blow, did not see the appellant holding a glass, and had significant gaps in his recollection. The other prosecution witnesses could not fill those evidentiary gaps in any reliable way, and the medical evidence was expressed in permissive rather than conclusive terms.

On that basis, the court concluded that the evidence was not capable of supporting a finding, beyond reasonable doubt, that the appellant had deliberately struck the victim with the glass as alleged. Importantly, proof of such a deliberate striking was an essential element required for conviction under both the primary count (s 33) and the available alternative count (s 35). The verdict was therefore set aside as unreasonable.

Given the period the appellant had already spent in custody and the imminent expiry of the law term, the court had entered the verdict and judgment of acquittal on 5 December 2002, with reasons reserved until 25 March 2003. The Crown's separate appeal against the inadequacy of the sentence was dismissed, having been rendered moot by the acquittal.

Orders Made

  • Appeal against conviction allowed
  • Verdict and judgment of acquittal entered
  • Sentence quashed
  • Crown appeal against inadequacy of sentence dismissed

Key Takeaways

  • A conviction cannot stand where the essential physical act alleged by the Crown is not supported by any direct evidence and the circumstantial evidence could not, taken as a whole, permit a jury acting reasonably to be satisfied beyond reasonable doubt of guilt.
  • Both the s 33 offence (malicious infliction of grievous bodily harm with intent) and the s 35 alternative (malicious infliction of grievous bodily harm) required proof of the same deliberate act. Where that common foundational element lacks evidential support, neither charge can be sustained.
  • The Court of Criminal Appeal confirmed that, in assessing an unreasonable verdict, it must consider the evidence and circumstances of the individual case, applying the principles articulated in M (1994) 181 CLR 487 and affirmed by the High Court in MFA [2002] HCA 53.
  • Heavily intoxicated witnesses with acknowledged gaps in their recollections provided an unreliable evidential foundation, and medical evidence expressed only in permissive terms ("could have been", "possible") was insufficient to bridge those gaps.
  • Where an appellate court allows a conviction appeal on the basis that the verdict is unreasonable, a verdict and judgment of acquittal is entered rather than a retrial being ordered.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 33, 35
- Criminal Appeal Act 1912 (NSW), s 6(1)

Cases
- Chamberlain (No. 2) (1984) 153 CLR 521
- M (1994) 181 CLR 487
- Martin [2002] NSWCCA 290
- Bikic [2002] NSWCCA 227
- Markuleski (2001) 52 NSWLR 82
- MFA v The Queen [2002] HCA 53
- MacKenzie (1996) 90 A Crim R 468
- Jones v The Queen (1997) 191 CLR 439
- Rose [2002] NSWCCA 455