Citation: R v Trent Benischke [2005] NSWCCA 169
Court: New South Wales Court of Criminal Appeal
Date: 28 April 2005
Judge(s): Spigelman CJ, Grove J, Howie J
Background
The applicant was one of four men charged in connection with a street attack in Maroubra in August 2003. The group targeted a man they wrongly believed had assaulted a co-accused's girlfriend, punching and kicking him repeatedly after he fell to the ground. The victim was carrying his five-week-old daughter in a baby harness beneath his zipped jacket, meaning the infant was not visible to the attackers.
The infant sustained injuries during the assault. The Crown charged all four men with maliciously inflicting grievous bodily harm on the baby under ss 35(1) and 35(2) of the Crimes Act 1900, relying on the doctrine of joint criminal enterprise.
The applicant sought a permanent stay of the charges relating to the baby, arguing before the District Court that the offences could not have been committed "maliciously" because none of the accused knew the infant was present. Shadbolt DCJ refused the stay. The applicant then sought leave to appeal that interlocutory ruling to the Court of Criminal Appeal.
Legal Issues
- Whether the applicant was entitled to a permanent stay on the basis that, taking the Crown case at its highest, it was impossible to prove the offence was committed "maliciously" within the meaning of ss 5 and 35 of the Crimes Act 1900
- Whether, given the evidence, it was open to a jury to conclude the applicant became aware of the infant's presence during the course of the attack
- Whether leave to appeal against the interlocutory judgment should be granted under s 5F(3)(a) of the Criminal Appeal Act 1912
Decision
The application for leave turned significantly on the agreed facts used in the stay application. The original agreed facts stated that none of the accused knew of the baby's existence "at any relevant time." However, the Crown effectively withdrew that concession during submissions, clarifying it applied only to the moment the group exited their vehicle, before the attack began.
Evidence in the Crown brief indicated that at least one co-accused made statements acknowledging the baby began crying during the assault, and a female witness described hearing a sound like a cat's meow during the kicking. Spigelman CJ noted that this material meant it was open to a jury to find the applicant became aware of the infant's presence while the attack was ongoing.
Section 5 of the Crimes Act 1900 defines "maliciously" broadly, including acts done with indifference to human life or suffering, with intent to injure, or recklessly. Spigelman CJ concluded that, on the available evidence, the question of whether the applicant acted maliciously with respect to the infant was a matter for the jury to determine, not a question to be resolved by way of permanent stay.
Although this reasoning differed from the basis on which Shadbolt DCJ had refused the stay, the Court of Criminal Appeal held it was directly relevant to the leave question. Intervention by the appellate court at the interlocutory stage was not appropriate. All three judges agreed that leave should be refused.
Orders Made
- Leave to appeal refused.
Key Takeaways
- Refusing leave to appeal, the Court of Criminal Appeal confirmed that a permanent stay is not available where, on the highest view of the Crown case, it remains open to a jury to find the required mental element established.
- Under s 5 of the Crimes Act 1900, "maliciously" encompasses acts done with indifference to human life or suffering, or recklessly, not solely acts involving prior knowledge of a specific victim.
- Where agreed facts used in an interlocutory application are qualified or effectively withdrawn during submissions, a court may take a broader view of the evidence when assessing whether a legal question is genuinely foreclosed.
- Sufficient evidence existed, including statements by a co-accused acknowledging the infant's cries during the assault, to raise a jury question about when the applicant became aware of the baby's presence.
- The Court of Criminal Appeal may refuse leave on grounds different from those relied upon by the trial judge, provided those grounds are relevant to the leave question.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 5, 35(1)(b), 35(2)
- Criminal Appeal Act 1912 (NSW), s 5F(3)(a)
Cases: No cases were cited in the provided text of the judgment.