District Court New South Wales Medium Neutral Citation: R v Firebrace (No 2) [2014] NSWDC 275 Decision date: 06 August 2014 Jurisdiction: Criminal Before: Cogswell SC DCJ Decision: Application rejected. Catchwords: CRIMINAL LAW - application for dismissal of charge - offences against the person - aggravated sexual assault - evidence of abrasions and bleeding - meaning of actual bodily harm - whether scratches and abrasions capable of amounting to actual bodily harm - application rejected Cases Cited: The King v Donovan [1934] 2 KB 498 McIntyre v R [2009] NSWCCA 305, (2009) 198 A Crim R 549 Category: Procedural and other rulings Parties: Regina (Crown) Wesley Firebrace (accused) Representation: Counsel: K Stares (accused) Solicitors: M Knowles (Director of Public Prosecutions) File Number(s): 2013/00074102 Judgment 1. Wesley Firebrace has been charged with having sexual intercourse with a woman without her consent knowing that she was not consenting "in circumstances of aggravation, namely that at the time of the commission of the offence, the said Wesley Peter Firebrace inflicted actual body harm" on the other person. 2. Ms M Knowles, who appears for the Director of Public Prosecutions, is about to close her case. I have heard argument from Ms K Stares, who appears for Mr Firebrace, on an application which she is proposing to make after the formal closure of the prosecution case to remove that charge from the jury. The argument is to the effect that there is no evidence in the prosecution case taken at its highest of any actual bodily harm. 3. Ms Stares acknowledges the evidence of three or four abrasions to the complainant's vagina and the description by a doctor of those abrasions being the scraping off of superficial mucosa. Ms Stares also reminds me that she asked the doctor whether the injuries could be described as transient, and the doctor agreed. In addition, there is no evidence, Ms Stares argues, of any ongoing discomfort or that the complainant's health has been detrimentally affected. 4. Ms Stares has helpfully provided me with the authorities relevant to the question of actual bodily harm. One authority of just over 80 years standing is The King v Donovan [1934] 2 KB 498 where the English Court of Criminal Appeal said in a joint judgment at 509 the following - "For this purpose we think that 'bodily harm' has its ordinary meaning and includes any hurt or injury calculated to interfere with the health or comfort of the prosecutor. Such hurt or injury need not be permanent, but must, no doubt, be more than merely transient and trifling." In addition, in McIntyre v R [2009] NSWCCA 305, (2009) 198 A Crim R 549, Johnson J, with whom Macfarlan JA and Blanch J agreed, said at 558 ([44]) that "[b]ruises and scratches to a victim are typical examples of injuries that are capable of amounting to actual bodily harm". 1. Ms Stares acknowledges these authorities but argues that the evidence in this case does not amount to "hurt or injury calculated to interfere with the health" of a complainant. She points to there being evidence of no blood associated with the abrasions when the complainant was examined by a doctor some five hours after the claimed rape. 2. The doctor's evidence was to the effect that the abrasions amounted to what she described as a recent penetrating injury to the complainant's female genitalia. It was consistent with the insertion of a penis but consistent also with the insertion of a finger or other objects. It was consistent with sexual intercourse both with consent and without consent. 3. Ms Stares fairly reminded me that one of the police officers to whom the complainant first reported what (she said) had happened asked the complainant whether she was bleeding as a result of the sexual intercourse and the complainant said that she was. Ms Stares argued that there was no evidence of any ongoing discomfort, soreness or stinging after examination by the doctor. 4. In my opinion, the evidence of the abrasions does amount to evidence of actual bodily harm. In the same passage in McIntyre, Johnson J pointed out that a "wounding" will require "breaking of the skin". His Honour then went on to make the observation about scratches being "quite typical examples of injuries that are capable of amounting to actual bodily harm." 5. There is evidence in this case which the jury can rely upon, if they choose to, of non-consensual penile penetration of the complainant's vagina accompanied by signs of blood within an hour or two of that claimed event, which was said to be without consent. There is expert evidence that the abrasions are consistent with non-consensual sexual intercourse. Again, the jury may accept that evidence. There is also evidence from the expert describing what she saw as a penetrating injury to female genitalia. 6. To my mind, the evidence is quite sufficient to amount to actual bodily harm. 7. Accordingly, for the reasons I have just given, when the application is made I will reject it. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 February 2015