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8
Court of Criminal Appeal 23 April 2012

Markou v R

[2012] NSWCCA 64

Also reported as (2012) 221 A Crim R 48
Assault & violence
CRIMINAL LAW APPEAL CONVICTION WHETHER EVIDENCE OF ACTUAL BODILY HARM DEFINITION OF 'BODILY HARM' WHETHER EXPLANATION NECESSARY IN JUDGE

Citation: Markou v R [2012] NSWCCA 64
Court: NSW Court of Criminal Appeal
Date: 23 April 2012
Judges: Macfarlan JA, RS Hulme J, RA Hulme J

Background

The appellant was charged following an incident in the early hours of 9 August 2009 at a nightclub in Darlinghurst. Two separate birthday groups were present, and a scuffle broke out. The appellant, then aged 24, admitted punching the complainant (aged 19) to the left side of the jaw. CCTV footage showed the appellant advancing toward the complainant accompanied by another man, and a second person then attacking the complainant moments later.

The complainant suffered a lacerated lip, a lost tooth, a loose tooth, and a broken jaw. Because the trial judge could not attribute all of that harm to the appellant's punch rather than the second attacker's punch, the appellant was acquitted of recklessly inflicting grievous bodily harm while in company. He was, however, convicted of the alternative charge: assault occasioning actual bodily harm while in company, contrary to s 59(2) of the Crimes Act 1900.

The appellant was sentenced to nine months imprisonment served by way of an Intensive Correction Order. He appealed both conviction and sentence before the Court of Criminal Appeal.

  • Whether the trial judge's judgment in the judge-alone trial sufficiently explained the principles of law applied and the findings of fact, as required by s 133(2) of the Criminal Procedure Act 1986
  • Whether there was evidence capable of establishing "actual bodily harm" where the full extent of the complainant's injuries could not be attributed to the appellant's punch alone
  • Whether the "in company" element of the offence was made out on the evidence
  • Whether self-defence was available to the appellant on the facts
  • Whether the sentence of imprisonment was appropriate, and whether the sentencing judge was required to identify precisely what harm the appellant had caused

Decision

Ground 1 and Additional Ground 1: Actual bodily harm and the judge's reasoning

Macfarlan JA, with whom RA Hulme J agreed, held that while the trial judge's reasons were brief, they were adequate in the circumstances. In a judge-alone trial, the judge need not produce an exhaustive explanation of every principle applied, particularly where the relevant legal concepts are not complex or contested. The court confirmed that "actual bodily harm" means any hurt or injury that is more than merely transient and trifling, following the long-standing definition in R v Donovan [1934] 2 KB 498. The trial judge's finding that the punch caused "some actual bodily harm" was open on the evidence: the complainant was visibly affected by the blow (he reeled back and put his hand to his face), and those observable effects were sufficient to support the conclusion, even without a precise medical itemisation of which injuries the appellant's punch specifically caused.

"In company" element

The court found the "in company" element was established. The CCTV footage showed the appellant advancing on the complainant alongside another man (identified by the appellant himself as Lillas). The trial judge was entitled to find that the appellant was accompanied by that person at the time of the assault, satisfying the requirement that the offending occur in the company of at least one other person sharing a common purpose.

Self-defence

The court found self-defence was not open on the facts. The complainant was shown on CCTV standing with his hands at his sides, in a non-threatening posture, when the appellant advanced and struck him. There was no evidentiary basis for a reasonable doubt that the appellant acted in self-defence.

Sentence appeal

The majority (Macfarlan JA and RA Hulme J) dismissed the sentence appeal, finding the nine-month Intensive Correction Order was within range given the objective seriousness of the offence, the appellant's prior history of violent conduct, and the deliberate nature of the assault. The sentencing judge was not required to identify the precise extent of harm caused by the appellant's punch in order to impose imprisonment. RS Hulme J dissented on sentence, taking the view that the conviction should be treated as the lesser offence (assault occasioning actual bodily harm, not in company) and that a reduced sentence of six months was appropriate, of which only approximately one month and three weeks remained to be served.

Orders Made

• Sentence reduced from that imposed by Finnane DCJ
• Appellant to be sentenced to imprisonment for 6 months to be served by way of an Intensive Correction Order
• Credit given for time served (4 months and 1 week)
• Further sentence of imprisonment to be served by way of an Intensive Correction Order for a period of 1 month and 3 weeks

Key Takeaways

  • A conviction for assault occasioning actual bodily harm does not require medical evidence precisely quantifying the harm suffered; observable physical effects following a punch (such as the complainant reeling and raising his hand to his face) can suffice to establish harm that is more than transient and trifling.
  • In a judge-alone trial under s 133(2) of the Criminal Procedure Act 1986, the judgment must expose the reasoning process linking the legal principles to the factual findings, but brevity in the reasons is not fatal where the legal issues are straightforward and the relevant facts are clear.
  • The "in company" element of s 59(2) of the Crimes Act 1900 requires that the accused was accompanied by at least one other person sharing a common purpose at the time of the assault; footage showing the accused advancing alongside an identified companion was held sufficient.
  • Self-defence was unavailable where CCTV footage showed the complainant in a non-threatening stance when the accused approached and struck him, leaving no evidentiary basis for a reasonable doubt as to defensive intent.
  • A sentencing court imposing imprisonment for assault occasioning actual bodily harm is not required to identify with precision which injuries resulted from the defendant's conduct, provided the court is satisfied that some actual bodily harm was caused and has regard to the objective gravity of the proven assault.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 35(1), 59(2)
- Criminal Procedure Act 1986 (NSW), ss 132, 133
- Criminal Appeal Act 1912 (NSW), s 6(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- R v Donovan [1934] 2 KB 498
- Fleming v The Queen [1998] HCA 68; 197 CLR 250
- AK v State of Western Australia [2008] HCA 8; 232 CLR 438
- Overall v R (1993) 71 A Crim R 170
- R v Tamcelik, ex parte Ozcan [1998] 1 Qd R 330
- R v Button [2002] NSWCCA 159; 54 NSWLR 455
- Handlen v The Queen [2011] HCA 51; 86 ALJR 145
- Spies v R [2000] HCA 43; 201 CLR 603
- Pemble v R [1971] HCA 20; 124 CLR 107
- R v Brougham (1986) 43 SASR 187
- R v Ion (1996) 89 A Crim R 81
- R v Winner (1995) 79 A Crim R 528
- R v Moussa [2001] NSWCCA 427; 125 A Crim R 505