Wood v R [2009] NSWCCA 39

New South Wales Court of Criminal Appeal

CITATION: Wood v R [2009] NSWCCA 39

HEARING DATE(S): 2 February 2009

JUDGMENT DATE: 26 February 2009

JUDGMENT OF: McClellan CJatCL at 1; James J at 14; Adams J at 15

DECISION: Appeal dismissed

CATCHWORDS: CRIMINAL LAW - appeal against conviction - malicious wounding - finding of no intent to murder not inconsistent with finding of intent to inflict grievous bodily harm

CATEGORY: Principal judgment

PARTIES: Michael Brian Wood (Appellant) The Crown

FILE NUMBER(S): CCA 2007/7704

COUNSEL: A Maher (Appellant) P Miller (Crown)

SOLICITORS: Ace Solicitors (Appellant) Director of Public Prosecutions (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 07/51/0116

LOWER COURT JUDICIAL OFFICER: Black DCJ

LOWER COURT DATE OF DECISION: 10 March 2008

IN THE COURT OF CRIMINAL APPEAL 2007/7704

McCLELLAN CJ at CL JAMES J ADAMS J

THURSDAY 26 FEBRUARY 2009 WOOD, Michael Brian v R Judgment 1 McCLELLAN CJ at CL: The appellant was indicted on 2 counts. The first count alleged that on 18 November 2005 at Mullumbimby he did wound Daniel Murray with intent to murder him. The second count was that on the same day he maliciously wounded Daniel Murray with intent to do grievous bodily harm to him. By consent of the parties the trial proceeded before Black DCJ without a jury. 2 The appellant was acquitted of the charge of wounding with intent to murder but convicted of the malicious wounding charge. He appeals from that conviction. 3 The issues at the trial were confined. Because the appellant had been drinking, excessively, on the night of the offence his counsel submitted that by reason of his intoxication the Crown could not prove that he had the required capacity to carry out either offence. The trial judge found that the appellant had the relevant capacity. There were then issues as to whether or not the appellant had the necessary intent to carry out either offence. The trial judge found that the Crown could not prove that the appellant had an intention to murder but was persuaded beyond reasonable doubt that he maliciously wounded Daniel Murray with intent to do grievous bodily harm to him. 4 The issues on the appeal were confined. The finding that the appellant had the relevant capacity was not challenged. However, it was submitted that his Honour's findings in relation to intention were in conflict and, having been acquitted of the attempted murder count, his Honour should have returned a verdict of not guilty in relation to the malicious wounding count. It was further submitted that having regard to the relevant facts a guilty verdict on the second count was not open.