REGINA v. SAMPSON [2002] NSWCCA 478

New South Wales Court of Criminal Appeal

CITATION : REGINA v. SAMPSON [2002] NSWCCA 478 FILE NUMBER(S) : CCA No. 60103 of 2002; No. 60269 of 2002 HEARING DATE(S) : Tuesday 19 November 2002 JUDGMENT DATE : 5 December 2002

PARTIES : REGINA v. SAMPSON, Brett Herbert JUDGMENT OF : Meagher JA at 1; Wood CJ at CL at 1; Greg James J at 1

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/31/0348 LOWER COURT JUDICIAL Patten, DCJ. OFFICER :

COUNSEL : Crown: D.C. Frearson App: P.R. Boulten SOLICITORS : Crown: S.E. O'Connor App: John Bettens & Co. CATCHWORDS : Criminal law - appeal - verdict unreasonable or unable to be supported by the evidence - malicious wounding with intent - alternative verdicts. LEGISLATION CITED : Crimes Act 1900 CASES CITED: N/A DECISION : Appeal upheld; verdict and judgment of acquittal entered

IN THE COURT OF CRIMINAL APPEAL No. 60103 of 2002 No. 60269 of 2002

MEAGHER, JA. WOOD, CJ. at CL GREG JAMES, J.

THURSDAY 5 DECEMBER 2002 REGINA v. BRETT HERBERT SAMPSON Judgment 1 THE COURT: This is an appeal by Brett Herbert Sampson from his conviction on one count of maliciously inflicting grievous bodily harm with intent to do grievous bodily harm, an offence against s.33 of the Crimes Act 1900. 2 He was convicted of that offence after a trial in the District Court at Gosford before a jury. He has been in custody since 7 February 2002, having been sentenced in respect of that offence to imprisonment for three years commencing that day and expiring on 6 February 2005. In respect of that sentence, a non-parole period of 18 months to expire on 6 August 2003 was imposed. 3 In addition, there is an appeal by the Director of Public Prosecutions against the asserted inadequacy of that sentence. 4 On 19 November 2002, the court heard full argument on both matters, written submissions on the appeal against conviction having been supplied in advance of that argument. During that argument, the question arose as to whether any alternative verdict might have been available to be substituted should the appeal otherwise be successful. Further submissions were supplied by both the Crown and the appellant later that week. 5 It is common ground, having regard to those submissions, that no alternative verdict of assault is available on the indictment. The only alternative verdict available was an alternative verdict of maliciously inflict grievous bodily harm under s.35 of the Crimes Act 1900. 6 Two grounds of appeal against conviction were advanced on the appellant's behalf. The first was that "the verdict of the jury should be set aside on the grounds that it is unreasonable, or cannot be supported having regard to the evidence". 7 In our view, this is a ground which, having regard to the evidence, should succeed. The effect of the matters supporting the ground is such that any verdict on the alternative count could not be supported or would be unreasonable. So, no substituted verdict is permissible, nor is this an appropriate matter, having regard to the ground which has succeeded, for there to be a new trial. 8 It is therefore not necessary to deal with the further ground that "the evidence was not capable of excluding the reasonable possibility that the appellant acted in self-defence" nor to deal with the Crown appeal. 9 Having regard to the period of time in which the appellant has been in custody and the imminent expiry of the law term with the attendant difficulties of enabling full reasons to be given prior to the end of term, the course that has been decided upon is that the court should order the appeal be upheld, and a verdict and judgment of acquittal entered. The full reasons will be given in due course. **********