February 19, 2018

RH v R – Conviction Quashed in NSW Court of Criminal Appeal

We represented a client in an appeals hearing before the NSW Court of Criminal Appeal.

Client charged with causing grievous bodily harm

RH was an Aboriginal woman who was charged with causing grievous bodily harm to the alleged victim (V) while being reckless as to causing actual bodily harm. It was the prosecution’s case that V had attended RH’s house in Surry Hills yelling that he wanted his mobile phone returned. It was alleged that an argument had started between them and that RH had struck V’s head with a log causing significant injuries. The prosecution relied on the evidence of two witnesses and the alleged victim.

Many inconsistencies in first trial

At the first trial, which was heard before a judge only, V gave evidence that he had difficulty remembering the incident. During his cross-examination he agreed that his back was turned when he was struck on the head, and that he was not looking at the person who struck him. He further gave evidence that RH’s boyfriend CC was also present at the time of the incident. Another prosecution witness, the neighbour, gave evidence that his view of the events was brief and fleeting, and conceded that when shown photographs by the police, he was unable to identify RH or V. He also admitted that it was possible that someone else was present at the scene but was out of his line of sight.

RH’s defence argued an alternative hypothesis

RH argued in the first trial that the prosecution could not exclude beyond reasonable doubt that it was in fact another person (CC) who had struck the victim. It was further argued that the behaviour of the police and inconsistencies of the complainant’s evidence meant that RH could not be found guilty beyond reasonable doubt. Despite this, the trial judge was “satisfied beyond reasonable doubt that the crown case had been established”. RH was convicted and sentenced to 2 years imprisonment.

RH appealed her conviction

We represented RH in her conviction appeal to the NSW Court of Criminal Appeal. RH’s three grounds of appeal were that the trial judge had made an error in failing to give reasons for refusing the application to exclude the evidence of V, the trial judge had made an error in failing to exclude the evidence of V, and that the verdict of guilty was unreasonable and could not be supported having regard to the evidence.

In RH’s appeals trial the court reviewed the evidence and made a finding that that trial judge made an error in rejecting RH’s competing hypothesis, and his finding that the offence was proved beyond reasonable doubt. Given that “the evidence was incapable of supporting a finding of guilty beyond reasonable doubt”, RH’s conviction was quashed and she was released.

This is just one of many successful outcomes where O’Brien Criminal and Civil Solicitors have represented clients in criminal appeals. If you require assistance with making an appeal call us on (02) 9261 4281.