CRAWFORD, Neal Andrew v R [2008] NSWCCA 166

New South Wales Court of Criminal Appeal

CITATION: CRAWFORD, Neal Andrew v R [2008] NSWCCA 166

HEARING DATE(S): 14 July 2008

JUDGMENT DATE: 6 August 2008

JUDGMENT OF: McClellan CJ at CL at 1; Hidden J at 2; Fullerton J at 3

1. The appeal against conviction in respect of count 2 on the indictment be allowed. DECISION: 2. The conviction in respect of count 2 on the indictment be quashed. 3. There be a retrial on count 2 on the indictment.

CATCHWORDS: CRIMINAL LAW - appeal against conviction - malicious wounding causing grievous bodily harm of a police officer in execution of duty - self-defence - response to lawful conduct under ss 418 and 422 of Crimes Act

LEGISLATION CITED: Crimes Act 1900

CATEGORY: Principal judgment

CASES CITED : R v Katarzynski [2002] NSWSC 613

PARTIES: Neal Andrew Crawford (App) The Crown (Resp)

FILE NUMBER(S): CCA 2007/2926

COUNSEL: E Ozen (App) LMB Lamprati SC (Resp)

SOLICITORS: Benjamin Goh (App) Director of Public Prosecutions (Resp)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/11/0818

LOWER COURT JUDICIAL OFFICER: Hock DCJ

LOWER COURT DATE OF DECISION: 27 April 2007

- 1 - IN THE COURT OF CRIMINAL APPEAL CCA 2007/2926

McCLELLAN CJ at CL HIDDEN J FULLERTON J

6 AUGUST 2008 NEAL ANDREW CRAWFORD v R Judgment 1 McCLELLAN CJ at CL: I agree with Fullerton J. 2 HIDDEN J: I agree with Fullerton J. 3 FULLERTON J: On 2 April 2007 Neil Andrew Crawford pleaded not guilty to an indictment containing six counts. Each offence was alleged to have been committed on 2 April 2006 consequent upon the police responding to a "000" call placed by a member of a household in Chippendale. The gravamen of the complaint to police was that the appellant was outside the house behaving in a verbally aggressive manner towards the occupants. 4 The first count on the indictment charged a malicious wounding of Constable Warren in the execution of duty causing him grievous bodily harm contrary to s 60(3)(b) of the Crimes Act 1900 and the second, an alternate count of assault occasioning actual bodily harm to the same named officer contrary to s 60(2) of the Crimes Act. The injury in each of counts 1 and 2 was multiple undisplaced fractures to the jaw. The third and fourth counts were also cast in the alternative and alleged an assault of a different police officer. The remaining counts alleged that the appellant resisted arrest and maliciously damaged a door. 5 On 19 April 2007 the jury returned a verdict of guilty in respect of the second count and verdicts of not guilty in respect of the balance of the charges on the indictment. 6 On 27 April 2007 the appellant was sentenced to a non-parole period of 18 months to commence on the date of sentence with the balance of term of 18 months to expire on 26 July 2010. The earliest date for release to parole was specified as 26 January 2009. 7 The appellant appeals against his conviction on the ground that the trial judge failed to direct the jury adequately in accordance with the applicable law on the issue of self-defence as provided for in Part 11 Division 3 of the Crimes Act in circumstances where the alleged victim of the assault was a police officer. He also seeks leave to appeal against sentence on the ground that the sentencing judge failed to properly take into account his mental state and, that having regard to all the circumstances of the case, the sentence imposed was manifestly excessive. Since I am of the view that the appeal against conviction should be allowed and a new trial ordered the question of leave to appeal against sentence does not arise. Relevant facts