Citation: R v Puta; R v Nitrovic; R v Nanai [2002] NSWCCA 495
Court: Court of Criminal Appeal, New South Wales
Date: 10 December 2002
Judge(s): Heydon JA; Blanch AJ; Smart AJ
Background
Three men were convicted of the manslaughter of two victims who were lured to a house in Bankstown and ambushed and shot dead on the evening of 5 April 1998. The Crown alleged that a group of men had agreed to lure the victims to the house and assault them, and that each accused either knew or contemplated that firearms might be used. All three appellants had been acquitted of murder but convicted of the manslaughter of both deceased.
The trial was lengthy and complex, running from April to September 2000 with a transcript exceeding 3,300 pages. Each appellant denied having prior knowledge of the presence of firearms or contemplating their use in the planned assault. One appellant, Nanai, maintained he was recruited at the last minute to make up numbers and was never taken into the confidence of the principal offenders.
Each appellant challenged his conviction on appeal to the Court of Criminal Appeal. Two of the three (Nitrovic and Nanai) also sought leave to appeal against the severity of their sentences.
Legal Issues
- Whether the convictions of manslaughter were unreasonable and could not be supported having regard to the evidence
- Whether the trial judge erred in leaving manslaughter as an available alternative verdict on each count of murder
- Whether the trial judge erred in ruling there was a case to answer and declining to direct verdicts of not guilty (raised by Puta)
- Whether the sentences imposed on Nitrovic and Nanai were manifestly excessive
Decision
The Court of Criminal Appeal dismissed all three conviction appeals. The court found that the verdicts of manslaughter were reasonable and supported by the evidence. The jury had heard extensive evidence over several months and was entitled to find that each accused participated in the joint enterprise to assault the victims while falling short of the knowledge of firearms required for murder.
On the question of whether manslaughter should have been left to the jury as an alternative verdict, the court concluded that the trial judge was correct to do so. The court confirmed that three different varieties of manslaughter were appropriately left to the jury in the circumstances of the case.
Regarding the sentence appeals, the court declined to grant leave to Nitrovic and Nanai. Smart AJ observed that the sentences, if anything, tended toward leniency given the gravity of the offending. The unlawful killing of two people in a joint ambush, involving the use of guns in a small confined space, was of the most serious kind. Subjective features of the offenders, while acknowledged, were not the principal sentencing factor in crimes of this gravity. The court found that the judge had sufficiently identified each offender's role and personal circumstances and had appropriately differentiated between them.
Orders Made
- Arben Puta: appeal against conviction dismissed
- Zeljko Nitrovic: appeal against conviction dismissed; leave to appeal against sentence refused
- Satuala Nanai: appeal against conviction dismissed; leave to appeal against sentence refused
Key Takeaways
- The Court of Criminal Appeal confirmed that a trial judge is correct to leave multiple varieties of manslaughter to a jury as alternative verdicts where the evidence raises distinct bases on which the jury could find guilt short of murder.
- Verdicts of manslaughter following acquittals on murder charges were held to be reasonable where the evidence supported a finding of participation in a joint enterprise to assault, but fell short of establishing prior knowledge or contemplation of firearm use sufficient for murder.
- In dismissing the sentence appeals, the court reaffirmed that where two lives are taken in a planned and coordinated attack, subjective features of the offenders assume a secondary role to the objective gravity of the offending.
- No error was established in the trial judge's decision to rule there was a case to answer on both murder counts, and no basis existed for directing verdicts of not guilty.
- A participant's subsidiary or last-minute role in a joint criminal enterprise does not, of itself, render an otherwise proportionate sentence manifestly excessive.
Legislation and Cases Referenced
Legislation: None cited.
Cases:
- M v The Queen (1994) 181 CLR 487
- MFA v The Queen [2002] HCA 53
- Edwards v The Queen (1993) 177 CLR 193
- Maric v The Queen (1978) 52 ALJR 631
- Markby v The Queen (1978) 140 CLR 108
- Pemble v The Queen (1971) 124 CLR 107