AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
Court of Criminal Appeal 30 October 2019

Anderson v R

[2019] NSWCCA 256

Assault & violence
CRIME APPEAL APPLICATION REFUSED

Citation: Anderson v R [2019] NSWCCA 256
Court: Court of Criminal Appeal
Date: 30 October 2019
Judge(s): Macfarlan JA (principal judgment); Johnson J and Cavanagh J agreeing

Background

The applicant was convicted in the District Court in August 2016 of causing grievous bodily harm with intent to cause grievous bodily harm, contrary to s 33(1)(b) of the Crimes Act 1900 (NSW). He had also pleaded guilty to stealing property from a dwelling house. The offences arose from an attack on a long-term friend on New Year's Eve 2014, during an argument about a debt. The victim suffered a severe traumatic brain injury requiring 24-hour nursing care, with extremely poor prospects of recovery.

The applicant was sentenced in November 2016 to 15 years' imprisonment with a non-parole period of 11 years and 3 months for the s 33 offence, and a concurrent fixed term of 15 months for the theft. He did not file a formal Notice of Appeal within the required six-month window. He eventually filed in June 2019, nearly two and a half years out of time.

The applicant, appearing for himself in the Court of Criminal Appeal, sought an extension of time to appeal both his conviction and the severity of his sentences. The Crown opposed the extension on grounds of lack of merit, unexplained delay, and likely adverse effects on the victim's family.

  • Whether an extension of time should be granted under s 10(1)(b) of the Criminal Appeal Act 1912 (NSW) to allow the applicant to pursue his proposed appeals
  • Whether the conviction on the s 33(1)(b) charge was unreasonable or unsupported by the evidence, particularly on the question of intent to cause grievous bodily harm
  • Whether the sentence imposed was unreasonable or plainly unjust

Decision

The Court addressed the merits of the proposed appeals first, as prospects of success are a relevant factor in the exercise of the discretion to extend time. The applicant's written ground of appeal was essentially that he lacked the intent to cause grievous bodily harm, and his oral submissions suggested he had acted in self-defence. The Court noted that a self-defence argument had not been raised at trial and was not supported by the evidence. In particular, the applicant had acknowledged he had the option to leave.

Applying the well-established test from M v The Queen and subsequent authorities, the Court conducted an independent assessment of the trial record. The evidence included the applicant's own police interview, in which he admitted striking the victim approximately five times to the face while the victim was on the ground and not fighting back, and then stomping on his head. Expert medical evidence confirmed the injuries were consistent with multiple blows and stomping to the head of a prone victim. The Court found it was plainly open to the jury to conclude beyond reasonable doubt that the applicant intended to cause grievous bodily harm.

On sentence, the Court reviewed the sentencing judge's reasoning, which had taken into account the catastrophic and permanent nature of the injuries, the savagery of the attack, the applicable maximum penalty, the standard non-parole period, the applicant's prior criminal history, his status on conditional liberty at the time of the offence, and his poor rehabilitation prospects. The Court found the sentence fell within the range open to the sentencing judge and was neither unreasonable nor unjust.

Because neither the conviction appeal nor the sentence appeal had any prospect of success, the extension of time was refused. The likely adverse effects on the victim's family and the absence of any proper explanation for the lengthy delay reinforced that conclusion.

Orders Made

  • Application for an extension of time to appeal refused.

Key Takeaways

  • The merits of a proposed appeal are a primary consideration when a court exercises its discretion to grant an extension of time under s 10(1)(b) of the Criminal Appeal Act 1912 (NSW), as confirmed in Kentwell v The Queen (2014) 252 CLR 601.
  • A conviction for causing grievous bodily harm with intent under s 33(1)(b) of the Crimes Act 1900 (NSW) requires the Crown to prove specific intent; however, where an accused strikes and stomps on a prone and helpless victim, the jury is entitled to infer that intent beyond reasonable doubt from the nature and circumstances of the attack.
  • In dismissing the proposed conviction appeal, the Court of Criminal Appeal confirmed that an appeal ground of "unreasonable verdict" requires the appellate court to determine whether the jury must, as distinct from might, have entertained a doubt about guilt, giving due weight to the jury's primary fact-finding role.
  • Where a self-defence argument was not raised at trial, was unsupported by the evidence, and was inconsistent with the ground of appeal actually filed, the Court of Criminal Appeal will not entertain it for the first time on appeal.
  • Unexplained lengthy delay and the likely adverse effects on a victim's family are factors that can independently support a refusal of an extension of time, even if the primary reason for refusal is lack of merit in the proposed appeal.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 33(1)(b), 35(1), 148
- Criminal Appeal Act 1912 (NSW), ss 6(1), 10(1)(b)
- Criminal Appeal Rules (NSW), r 3A

Cases
- AM v The Queen [2012] NSWCCA 203; (2012) 225 A Crim R 481
- Bahri Kural v The Queen (1987) 162 CLR 502
- Kaddour v R [2019] NSWCCA 90
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Matzick v The Queen [2007] NSWCCA 92
- Nudd v The Queen (2006) 80 ALJR 614; [2006] HCA 9
- R v Birks (1990) 19 NSWLR 677
- R v Mitchell [2007] NSWCCA 96; (2007) 177 A Crim R 94
- Siganto v The Queen (1998) 194 CLR 656; [1998] HCA 74