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Court of Criminal Appeal 17 September 2014

McKay v R

[2014] NSWCCA 187

Assault & violence
CRIMINAL LAW CONVICTION APPEAL ASSAULT OCCASIONING ACTUAL BODILY HARM APPLICANT AND VICTIM BOTH PRISONERS VERDICT OPEN TO JURY SENTENCE APPEAL

Citation: McKay v R [2014] NSWCCA 187
Court: NSW Court of Criminal Appeal
Date: 17 September 2014
Judge(s): Hoeben CJ at CL; McCallum J; Garling J

Background

The appellant was an inmate at the Outer Metropolitan Multi-Purpose Correctional Centre. In March 2011, while working in the prison laundry, he became involved in an altercation with another inmate (the victim) after the victim challenged him over a prank directed at a third prisoner. The victim suffered a severe eye injury during the fight and subsequently lost the eye.

The appellant was tried in the District Court before Huggett DCJ and a jury on two counts: recklessly causing grievous bodily harm (s 35(2) Crimes Act 1900) and, in the alternative, assault occasioning actual bodily harm (s 59 Crimes Act 1900). The jury acquitted on the primary count but convicted on the alternative count. The appellant was sentenced to four years' imprisonment with a non-parole period of three years.

The appellant sought leave to appeal against both conviction and sentence, arguing the verdict could not stand and that the sentencing judge made erroneous factual findings.

  • Whether the jury's verdict of guilty on the assault occasioning actual bodily harm charge was capable of being supported by the evidence
  • Whether the jury adopted an inappropriate line of reasoning in differentiating between the two counts when no evidential basis for that distinction existed
  • Whether the acquittal on the more serious count was logically inconsistent with the conviction on the lesser count
  • Whether the sentencing judge erred in finding beyond reasonable doubt that the assault involved an object held by the appellant, and that this object caused the eye injury

Decision

On the conviction grounds, Hoeben CJ at CL found the verdict was plainly open on the evidence. The jury could rationally have concluded, on the victim's account, that the appellant punched him in the eye while holding an object, while still entertaining a reasonable doubt about whether the appellant foresaw the possibility of grievous bodily harm. That distinction corresponded to the mental element separating the two charges: the recklessness element in s 35(2) required proof that the appellant realised grievous bodily harm might result, which the jury was entitled to doubt.

The argument that the acquittal and conviction were logically inconsistent was rejected. The jury's differentiation between the two counts was rational and consistent with applying the appropriate mental element to each. There was no miscarriage of justice arising from the verdicts.

On the sentence appeal, the appellant challenged three factual findings by the sentencing judge: that the eye injury was caused by the assault, that the offence was constituted by the punches to the head rather than the eye, and that the appellant held an object during the assault. Hoeben CJ at CL found no basis for these challenges. The sentencing judge had expressly directed herself that the appellant could not be sentenced for the more serious conduct underlying the acquitted charge, and had confined her findings to what was open beyond reasonable doubt on the conviction.

All three judges agreed the appeals against both conviction and sentence should be dismissed.

Orders Made

• Grant leave to appeal against conviction
• Dismiss the conviction appeal
• Grant leave to appeal against sentence
• Dismiss the application for leave to appeal against sentence

Key Takeaways

  • A jury may rationally acquit on a charge requiring proof of recklessness as to grievous bodily harm while convicting on a lesser charge of assault occasioning actual bodily harm, where the evidence supports a finding of intentional conduct but leaves reasonable doubt about the accused's awareness of the risk of the more serious harm.
  • Apparent inconsistency between verdicts on a primary and alternative charge does not establish a miscarriage of justice where a rational line of reasoning, grounded in the differing mental elements, can explain the distinction.
  • In dismissing the conviction appeal, the Court of Criminal Appeal confirmed that the test for an unsafe and unsatisfactory verdict requires more than a showing that another verdict was also available; the verdict must not have been reasonably open on the evidence.
  • A sentencing judge may make findings of fact adverse to the offender to the criminal standard (beyond reasonable doubt) provided those findings do not amount to sentencing the offender for a more serious offence than that of which they were convicted.
  • No error was established in the sentencing judge's approach where she expressly directed herself against treating the acquitted conduct as an aggravating factor and confined her reasoning to matters properly before her on the convicted charge.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 35(2), 59
- Evidence Act 1995 (NSW), s 38

Cases
- Mackenzie v R [1996] HCA 35; 190 CLR 348
- MFA v R [2002] HCA 53; 213 CLR 606
- SKA v The Queen [2011] HCA 13; 243 CLR 400