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Court of Criminal Appeal 23 May 2003

Melchers v Regina

[2003] NSWCCA 119

Assault & violenceHomicide
CRIMINAL LAW CROWN APPEAL AGAINST SENTENCE.

Citation: Melchers v Regina [2003] NSWCCA 119
Court: New South Wales Court of Criminal Appeal
Date: 23 May 2003
Judge(s): Ipp JA; Buddin J; Smart AJ

Background

The appellant was convicted of manslaughter following the death of a man who collapsed at a large party at the Woy Woy Masonic Hall on 28 April 2001. The deceased suffered a subarachnoid haemorrhage after falling to the ground, and the Crown alleged the appellant had punched him to the head immediately before the fall. The appellant denied throwing any punch.

The evidence was contested. Of the roughly 200 people present, only one witness, Mr Kevin Craft, claimed to have seen the appellant punch the deceased. Other witnesses either did not see the blow or gave evidence that was equivocal at best. Expert medical evidence was also disputed at trial.

Following conviction, the trial judge in the District Court sentenced the appellant to three years imprisonment with a non-parole period of two years and three months, to be served by way of periodic detention. The appellant appealed against the conviction and the Crown appealed against what it contended was a manifestly inadequate sentence.

  • Whether the jury's verdict of guilty was unreasonable and inconsistent with the evidence, applying the test in M v The Queen (1994) 181 CLR 487
  • Whether the trial judge misdirected the jury by instructing them to be cautious where there was a close relationship between a witness and the appellant
  • Whether the speed with which the jury moved from deadlock to a unanimous verdict gave rise to a miscarriage of justice
  • Whether the sentence of three years imprisonment served by way of periodic detention was manifestly inadequate

Decision

Unreasonable verdict (majority: Ipp JA and Buddin J; Smart AJ dissenting)

The majority held that the guilty verdict was unreasonable and could not be supported on the evidence. Applying the test from M v The Queen, the court asks whether it was open to the jury to be satisfied beyond reasonable doubt of guilt on the whole of the evidence. The majority concluded the evidence contained discrepancies and inadequacies of such significance that, even allowing fully for the jury's advantage in seeing and hearing witnesses, there was a significant possibility that an innocent person had been convicted.

Smart AJ dissented, finding it was reasonably open to the jury to accept the Crown's medical evidence and the evidence of Mr Craft, and to be satisfied beyond reasonable doubt of the appellant's guilt. His Honour considered the alternative possibilities raised by the defence expert to be unrealistic in the circumstances.

Jury conduct and judicial directions (unanimous)

All three judges agreed that the speed with which the jury moved from deadlock to a unanimous verdict was not itself suggestive of a miscarriage of justice. The court noted that sudden changes of mind by jurors are not unusual and that the jury system depends on this to some degree. The court also found unanimously that the trial judge's direction to the jury to be cautious about evidence from a witness who had a close relationship with the appellant was innocuous in context and could not have had any significant effect on the jury.

Crown appeal against sentence

The majority declined to address the Crown's sentence appeal given the conviction was quashed, noting it would be undesirable and inappropriate to assess sentence against a notional set of facts. Smart AJ, in dissent on conviction, assessed the sentence and found it fell within the sound exercise of the sentencing discretion, given the unusual circumstances: a single unexplained punch that may not even have been intended for the deceased.

Orders Made

  • Appeal against conviction upheld.
  • Verdict of the jury set aside; conviction quashed and a verdict of acquittal entered in its place.

Key Takeaways

  • Where the evidence on the record contains discrepancies and inadequacies of sufficient magnitude, a Court of Criminal Appeal is bound to set aside a guilty verdict if, even allowing for the jury's advantage in observing witnesses, there is a significant possibility that an innocent person has been convicted: M v The Queen (1994) 181 CLR 487.
  • A rapid shift by a jury from deadlock to unanimous agreement does not, without more, constitute a miscarriage of justice. Sudden changes of mind are a recognised and functional feature of jury deliberation.
  • Judicial directions to the jury about exercising caution regarding the evidence of a witness with a close relationship to the accused are not necessarily erroneous; the key question is whether the direction, read in context, could have had any significant adverse effect on the jury.
  • In a case where a conviction is quashed on appeal, the majority declined to resolve the Crown's sentence appeal, finding it inappropriate to express a view on adequacy of sentence against a notional factual basis.
  • The court split three ways on the sentence issue: the majority left it undecided; Smart AJ, assessing it in dissent, found a three-year term served by periodic detention was within the proper exercise of sentencing discretion given the highly unusual circumstances of a single unexplained punch.

Legislation and Cases Referenced

Cases:
- M v The Queen (1994) 181 CLR 487
- MFA v The Queen (2002) 193 ALR 184
- Black v The Queen (1993) 179 CLR 44

Legislation: No specific legislation was cited in the provided text.