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Court of Criminal Appeal 30 September 2010

McDonald v R

[2010] NSWCCA 220

Assault & violence
CRIMINAL LAW CONVICTION APPEAL FORMER S 33 CRIMES ACT 1900 CRIMINAL LAW CONVICTION APPEAL SELF

Citation: McDonald v R [2010] NSWCCA 220
Court: NSW Court of Criminal Appeal
Date: 30 September 2010
Judge(s): Macfarlan JA; Simpson J; Hall J

Background

The appellant was convicted in the District Court of maliciously wounding the victim with intent to cause grievous bodily harm, contrary to the former s 33 of the Crimes Act 1900. The offence arose from an incident on 18 October 2007 at a residential unit complex, where the appellant struck the victim in the neck with a sharp-bladed implement known as a cane-cutter. The victim suffered severe cuts to his neck and a finger.

The appellant admitted striking the victim but claimed he had acted in self-defence. The trial judge (Garling DCJ) sentenced him to nine years and four months imprisonment with a non-parole period of seven years. The appellant challenged his conviction only, not the sentence.

  • Whether the trial judge misdirected the jury on the element of intent required under former s 33 of the Crimes Act 1900, by leaving open the possibility that the jury could convict on the basis of recklessness alone.
  • Whether the trial judge effectively reversed the onus of proof on the issue of self-defence, in contravention of s 419 of the Crimes Act 1900.

Decision

Ground 1: Direction on intent and recklessness

The Court rejected the submission that the trial judge erroneously invited the jury to convict on the basis of recklessness. The trial judge's references to recklessness arose in the context of explaining the element of "malice" under former s 5 of the Crimes Act 1900, which expressly permitted malice to be established by proof of recklessness. That was an accurate statement of the law as it stood at the time of the offence.

Critically, the trial judge went on to direct the jury separately and clearly that it must also be satisfied the appellant had acted with intent to cause grievous bodily harm. The word "also" in that direction signalled to the jury that intent was a distinct and additional requirement. Read as a whole, the summing-up correctly identified both elements as separate requirements that the Crown had to prove beyond reasonable doubt.

Ground 2: Self-defence direction and onus of proof

The Court rejected the argument that the trial judge had reversed the onus of proof on self-defence. While one passage in the summing-up could be characterised as preliminary framing rather than a full direction, the trial judge elsewhere stated clearly that the Crown bore the burden of disproving self-defence beyond reasonable doubt. The trial judge had also told the jury at the outset that the accused bore no onus at all and that guilt had to be proved by the Crown beyond reasonable doubt.

Taking the summing-up as a whole, the Court was satisfied the jury was properly directed that the onus of negativing self-defence rested entirely with the Crown. Neither ground of appeal had been raised at trial, and because the Court found no merit in either, it also refused leave to rely on them for the first time on appeal.

Orders Made

  • Leave to rely upon Grounds 1 and 2 of the Notice of Appeal is refused.
  • Appeal dismissed.

Key Takeaways

  • Under former s 5 of the Crimes Act 1900, recklessness was sufficient to establish the element of "malice" in a charge of wounding with intent under former s 33. Directing a jury to that effect was not an error.
  • A direction permitting recklessness to satisfy the malice element does not collapse into a direction permitting conviction on recklessness alone. The intent to cause grievous bodily harm remained a separate element requiring separate proof beyond reasonable doubt.
  • Where a trial judge deals with malice and intent as distinct, sequential elements in a summing-up, a court reading the summing-up as a whole will assess whether the jury was left with a sufficiently clear picture, rather than scrutinising individual passages in isolation.
  • In dismissing both grounds, the Court of Criminal Appeal confirmed that a self-defence direction must be read in its entirety. A passage that might appear to shift the onus will not constitute a misdirection if the summing-up, taken as a whole, correctly places the burden on the Crown.
  • No merit having been found in either ground, the Court refused leave to raise complaints for the first time on appeal. Grounds not raised at trial face a significant obstacle in obtaining leave at the appellate level.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), former s 33 (wounding with intent to cause grievous bodily harm)
- Crimes Act 1900 (NSW), former s 5 (definition of "maliciously")
- Crimes Act 1900 (NSW), s 419 (self-defence: onus of proof)
- Criminal Appeal Rules, r 4

Cases:
- R v Chai [2002] HCA 12; (2002) 76 ALJR 628
- Thomas v R [1960] HCA 2; (1959-1960) 102 CLR 584