Swan v R [2016] NSWCCA 79

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Swan v R [2016] NSWCCA 79 Hearing dates: 19 April 2016 Date of orders: 06 May 2016 Decision date: 06 May 2016 Before: R A Hulme J at [1] Garling J at [4] Wilson J at [92] Decision: (1) Leave to appeal granted. (2) Conviction for the offence contrary to s 35(1) of the Crimes Act 1900 of recklessly causing grievous bodily harm in company is quashed, and a verdict of acquittal on that offence is substituted. (3) The appellant is convicted of the offence contrary to s 59(2) of the Crimes Act 1900 of assault occasioning actual bodily harm in company. (4) The appellant is sentenced with respect to the offence of assault occasioning actual bodily harm in company to the following: (a) a non-parole period of imprisonment of 12 months commencing on 14 March 2015 and expiring on 13 March 2016; (b) a balance of term of imprisonment of 6 months commencing on 14 March 2016 and expiring on 13 September 2016. Catchwords: CRIMINAL LAW – appeal – conviction – evidence – verdict unreasonable or unsupportable on evidence – where appellant convicted of recklessly inflicting grievous bodily harm in company – s 35(1) Crimes Act 1900 (NSW) – whether injuries suffered by victim amounted to "grievous bodily harm" – whether Court should enter substituted verdict for assault occasioning actual bodily harm in company

WORDS AND PHRASES – "grievous bodily harm", "actual bodily harm" Legislation Cited: Crimes Act 1900 Criminal Appeal Act 1912 Cases Cited: AM v R [2012] NSWCCA 203 Director of Public Prosecutions v Smith [1961] AC 290 Haoui v R [2008] NSWCCA 209 Hawi v R [2014] NSWCCA 83 Hyam v DPP [1974] UKHL 2; [1975] AC 55 Libke v R [2007] HCA 30; (2007) 230 CLR 559 M v R [1994] HCA 63; (1994) 181 CLR 487 MFA v R [2002] HCA 53; (2002) 213 CLR 606 Muldrock v The Queen [2011] HCA 39 R v Miller [1951] VLR 346 R v Overall (1993) 71 A Crim R 170 R v Perks (1986) 41 SASR 335 SKA v R [2011] HCA 13; (2011) 243 CLR 400 Texts Cited: Not applicable Category: Principal judgment Parties: Dean Matthew Swan (Appellant) Regina – Respondent Crown Representation: Counsel: T Gartelmann SC (Appellant) M Cinque SC (Crown)