AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
Court of Criminal Appeal 10 March 2010

CRYER, Jamie Oliver v R

[2010] NSWCCA 18

Assault & violence
CRIMINAL LAW CONVICTION APPEAL RULE 4 OF CRIMINAL APPEAL RULES LEAVE TO APPEAL REFUSED APPEAL DISMISSED

Citation: CRYER, Jamie Oliver v R [2010] NSWCCA 18
Court: NSW Court of Criminal Appeal
Date: 10 March 2010
Judge(s): McClellan CJ at CL, Howie J, Harrison J

Background

The appellant was convicted in the District Court of maliciously inflicting grievous bodily harm contrary to s 35(1)(b) of the Crimes Act 1900, following a trial before Nield DCJ and a jury. The offence arose from an incident on 11 March 2006 at a hotel, during which the appellant punched the victim twice to the head. The victim fell backwards and suffered a serious brain injury when his head struck the ground.

In a recorded interview with police, the appellant admitted delivering the punches but said he did so in response to a threat and to create distance so he could leave safely. He denied intending to cause injury. He was sentenced to five years and six months imprisonment with a non-parole period of four years, one month and fifteen days. No challenge was made to the sentence.

The appeal concerned two grounds, both directed at the adequacy of the trial judge's directions to the jury on the mental element of "malice" required for the offence, in particular the concept of recklessness.

  • Whether the trial judge erred in directing the jury on the meaning of "malice" under s 35(1)(b) of the Crimes Act 1900.
  • Whether the Crown's address to the jury misstated the correct test for recklessness, by framing it as foresight of the possibility of "some harm" rather than foresight of the possibility of grievous bodily harm specifically.
  • Whether the trial judge's failure to correct any such error constituted a miscarriage of justice.
  • Whether Rule 4 of the Criminal Appeal Rules, which requires leave where no objection was taken at trial, barred the appeal.

Decision

The Court, in a judgment delivered by Harrison J (with McClellan CJ at CL and Howie J agreeing), dismissed the appeal and refused leave on both grounds.

On the first ground, the Court found that even if the trial judge's directions on malice were less than ideal, no miscarriage of justice resulted. The way the trial was actually conducted was critical: defence counsel at trial did not challenge whether the appellant had acted maliciously. The real contest was why the appellant struck the victim, not whether the act was malicious. Counsel's failure to seek a redirection was not attributable to any discernible tactical reason, and no evidence was led to suggest the appellant did not appreciate that some physical harm was a likely consequence of his actions.

On the recklessness point, the appellant argued that where the charge is one of grievous bodily harm, recklessness requires the Crown to prove foresight of the possibility of really serious injury, not merely some harm. The Court acknowledged the legal debate but found it unnecessary to resolve the precise scope of the recklessness test on the facts. In the absence of any evidence that the appellant did not realise what any ordinary person would recognise as a likely consequence of his conduct, the Crown had satisfied its burden. There was no live issue requiring a special jury direction.

Because defence counsel had made no application for redirection at trial, and no tactical explanation for that omission was apparent, Rule 4 of the Criminal Appeal Rules applied. That rule requires an applicant to obtain leave where no objection was taken at trial. The Court refused leave and dismissed the appeal.

Orders Made

  • Leave to appeal refused.
  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the way a trial is actually conducted is central to assessing whether misdirection caused a miscarriage of justice. Where the real issue before the jury was not malice but the appellant's motive, imperfect directions on malice may not vitiate the verdict.
  • A conviction for maliciously inflicting grievous bodily harm requires the Crown to prove the accused acted with the requisite mental element, either intention to cause some harm or recklessness as to the consequences of the act. The Court left open the precise formulation of recklessness required where grievous bodily harm specifically is charged.
  • Where defence counsel fails to seek a redirection during trial, Rule 4 of the Criminal Appeal Rules requires the applicant to obtain leave before raising that ground on appeal. The absence of any apparent tactical reason for the omission weighs against the grant of leave.
  • No special jury direction on recklessness was necessary where no evidence was adduced suggesting the accused failed to appreciate what any ordinary person would recognise as a likely consequence of the conduct in question.
  • Sufficient evidence existed, including unchallenged eyewitness testimony that the victim appeared immediately unconscious and fell rigidly backwards onto cement, to support the jury's finding that the appellant had acted maliciously.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 35(1)(b)
- Criminal Appeal Act 1912 (NSW)
- Criminal Appeal Rules (NSW), Rule 4

Cases:
- Chamberlain v R (1983) 46 ALR 493
- Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555
- Kural v The Queen [1987] HCA 16; (1987) 162 CLR 502
- Mencarious v R [2008] NSWCCA 237; 189 A Crim R 219
- Pengilley v R [2006] NSWCCA 163
- R v Chai [2002] HCA 12; (2002) 76 ALJR 628
- R v Coleman (1990) 19 NSWLR 467
- R v Cunningham [1957] 2 QB 396
- R v Dudko [2002] NSWCCA 336; (2002) 132 A Crim R 371
- R v Mowatt [1968] 1 QB 421
- R v Stokes and Difford (1990) 51 A Crim R 25
- Tripodina & Morabito (1988) 35 A Crim R 183
- Williams (1990) 50 A Crim R 213