AW v R [2023] NSWCCA 92

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: AW v R [2023] NSWCCA 92 Hearing dates: 7 October 2022 Date of orders: 21 April 2023 Decision date: 21 April 2023 Before: Mitchelmore JA at [1]; Davies J at [69]; Hamill J at [70]. Decision: (1) Leave to appeal granted. (2) Appeal allowed. (3) Quash the conviction in respect of Count 2 on the indictment. (4) Order a new trial in respect of Counts 2 and 3 on the indictment. (5) Quash the aggregate sentence imposed in the District Court on 21 May 2021. (6) Remit the undisturbed convictions on Counts 4, 5, 6 and 8 of the indictment for re-sentence. (7) List the matter in the District Court Country Call-Over, Court 21A John Maddison Tower Sydney, on Wednesday 26 April 2023 at 9:00am to obtain a trial date before the District Court in Nowra. Catchwords: CRIME – appeals – appeal against conviction – recklessly inflicting grievous bodily harm contrary to the Crimes Act 1900 (NSW), s 35(2) – where conceded that trial judge misdirected the jury as to mental element of offence – whether misdirections caused a miscarriage of justice – whether appropriate to apply the proviso if miscarriage of justice found to have occurred CRIME – appeals – appeal against conviction – where appeal against conviction successful – where sentencing judge imposed an aggregate sentence which included the count the subject of the successful appeal – where conviction on other counts was undisturbed – whether appropriate to re-sentence or remit to District Court for re-sentencing Legislation Cited: Crimes Act 1900 (NSW), ss 33, 35 Crimes Amendment (Reckless Infliction of Harm) Act 2012 (NSW) Criminal Appeal Act 1912 (NSW), ss 6, 7, 12 Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15 Cases Cited: AK v R [2022] NSWCCA 175 Allen v R [2020] NSWCCA 173 Baxter v R [2018] NSWCCA 281 Bazouni v R [2021] NSWCCA 256 BC v R (No 2) [2019] NSWCCA 142 Blackwell v R (2011) 81 NSWLR 119; [2011] NSWCCA 93 Edwards v The Queen (2021) 393 ALR 368; [2021] HCA 28 Ewan v R [2020] NSWCCA 85 Hofer v The Queen (2021) 95 ALJR 937; [2021] HCA 36 Justins v The Queen (2010) 79 NSWLR 544; [2010] NSWCCA 242 Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7 Lane v The Queen (2018) 265 CLR 196; [2018] HCA 28 Morrison v R [2022] NSWCCA 158 Orreal v The Queen (2021) 96 ALJR 78; [2021] HCA 44 Priday v The Queen [2019] NSWCCA 272 Reeves v The Queen (2013) 88 ALJR 215; [2013] HCA 57 Salgado v R [2022] NSWCCA 58 Watson v R [2020] NSWCCA 215 Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81 Category: Principal judgment Parties: AW (Applicant) Crown (Respondent) Representation: Counsel: Mr L Brasch and Mr J Leaver (Applicant) Ms C Curtis (Respondent)