AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Court of Criminal Appeal 28 March 2003

R v HOUSSEIN

[2003] NSWCCA 74

Assault & violenceDomestic & family violence

Citation: R v Houssein [2003] NSWCCA 74
Court: NSW Court of Criminal Appeal
Date: 28 March 2003
Judge(s): Meagher JA, Hulme J, Hidden J

Background

The appellant was tried in the District Court before Gibson DCJ on two counts: maliciously inflicting grievous bodily harm with intent under s 33 of the Crimes Act, and threatening a witness to withhold evidence. The charges arose from an incident on 25 October 2001 in which the appellant stabbed his brother multiple times, causing injuries that required a ten-day hospital stay.

The jury acquitted the appellant on both counts in the indictment but convicted him on an alternative charge, which had been formulated in writing by defence counsel and acquiesced in by the Crown and the trial judge. Gibson DCJ sentenced the appellant to three years' imprisonment, with a non-parole period of two years and three months. The appellant challenged both the conviction and the sentence on nine grounds.

  • Whether the alternative charge, as formulated, disclosed an offence known to law
  • Whether the trial judge's directions to the jury on the alternative count were adequate and accurate
  • Whether the trial judge correctly directed the jury on the presumption of innocence
  • Whether a witness statement was improperly read into the record during re-examination
  • Whether cross-examination of the appellant on a prior conviction and apprehended violence order (AVO) was permissible
  • Whether the appeal should attract a new trial or whether the proviso under s 6 of the Criminal Appeal Act applied to preserve the conviction

Decision

Grounds 2 and 3: The alternative charge. Hulme J accepted that the alternative charge as formulated was not known to law. However, the offending additional words ("did thereby occasion grievous bodily harm") added nothing to the words "did inflict grievous bodily harm." On the facts, inflicting and occasioning the harm were one and the same, and the superfluous words were treated as surplusage that did not invalidate the conviction. Hulme J nonetheless noted his surprise that neither counsel nor the trial judge managed to adopt the straightforward language of s 35.

Grounds 4 and 5: Jury directions. Hulme J found the trial judge's directions on the alternative count to be misleading. In particular, the direction that "maliciously" meant "deliberately, intentionally" did not accurately reflect the law as applied to the s 35 alternative, which does not require proof of intent to cause grievous bodily harm. Similarly, the direction on the presumption of innocence was found to be deficient. These errors contributed to the overall picture of a miscarried trial.

Ground 8: Cross-examination on the AVO. This ground succeeded and was determinative. The appellant had been cross-examined on both a prior conviction and an AVO taken out to protect his mother. The prior conviction was found to be admissible in the circumstances, but the AVO evidence was not. The AVO was plainly prejudicial, suggesting a propensity for family violence, and there was no basis to satisfy the tendency rule under s 97 of the Evidence Act. The Court found this wrongful admission was not curable by the proviso under s 6 of the Criminal Appeal Act because there was a real risk of substantial miscarriage of justice.

New trial ordered. Because there was admissible evidence upon which a conviction could have been based, and because a significant portion of the sentence remained unserved, the Court ordered a new trial rather than simply quashing the conviction. Hidden J agreed on Ground 8 and the new trial order, but declined to join in certain criticisms of the trial judge. He also flagged, without deciding, that the re-examination evidence at issue in Ground 7 appeared to be hearsay and might warrant a s 165(1)(a) Evidence Act warning at any retrial.

Orders Made

  • Appeal allowed
  • The conviction entered on 12 April 2002 and the sentence imposed on 14 June 2002 by Gibson DCJ are quashed
  • Subject to the discretion of the Director of Public Prosecutions, a new trial is to be held

Key Takeaways

  • Under s 34 and s 35 of the Crimes Act, a jury may acquit on a charge of maliciously inflicting grievous bodily harm with intent and instead convict on the lesser alternative of malicious infliction without intent; care must be taken to formulate that alternative charge precisely in the language of s 35.
  • Superfluous words in an alternative charge do not automatically invalidate a conviction, provided they add nothing and the factual conduct alleged is the same under both formulations.
  • Evidence of an apprehended violence order directed at a family member will not be admissible as tendency evidence unless the requirements of s 97 of the Evidence Act are clearly met; absent that foundation, admission of such evidence is liable to cause substantial prejudice that cannot be cured by the proviso.
  • The Court of Criminal Appeal declined to apply the proviso under s 6 of the Criminal Appeal Act where the wrongly admitted AVO evidence was prejudicial and no tendency-rule basis for its admission had been established.
  • Where admissible evidence existed on which a conviction could have been returned, and a significant period of sentence remained unserved, a new trial rather than a simple acquittal was the appropriate remedy.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 33, 34, 35
- Evidence Act 1995 (NSW), ss 97 (tendency rule), 165(1)(a)
- Criminal Appeal Act 1912 (NSW), s 6 (proviso)

Cases:
- Smith & Kirton v R (1990) 47 A Crim R 43