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Court of Criminal Appeal 3 November 2004

R v Woodside

[2004] NSWCCA 375

Assault & violence

Citation: R v Woodside [2004] NSWCCA 375
Court: Court of Criminal Appeal, New South Wales
Date: 3 November 2004
Judge(s): Studdert J (primary reasons); Sully J and Greg James J (agreeing)

Background

The appellant, a co-operator of a childcare centre in Bathurst, was convicted in 1997 of two counts of common assault in the Local Court. The alleged victims were two young children, referred to as TB and DT, who were in the appellant's care at the time of the incidents in late 1995. The prosecution relied on the eyewitness accounts of two employees at the centre.

The appellant appealed to the District Court, where Judge Kinchington QC conducted a full rehearing over ten days. His Honour dismissed that appeal in November 1998, accepting the prosecution evidence and finding both assaults proved beyond reasonable doubt.

The matter then came before the Court of Criminal Appeal by way of a reference from the Attorney General under s 474C(1)(b) of the Crimes Act. This provision allows a Minister, following consideration of a petition, to refer a whole case to the Court of Criminal Appeal to be dealt with as an appeal. The case therefore arrived at the appellate level by an unusual procedural pathway rather than through a conventional appeal as of right.

  • Whether the provisions of the Criminal Appeal Act 1912, and specifically s 6(1) governing unreasonable verdict appeals, applied to proceedings initiated by an Attorney General's reference under s 474C(1)(b) of the Crimes Act.
  • Whether the District Court's verdict was unreasonable or could not be supported having regard to the evidence, thereby warranting the setting aside of the conviction.

Decision

The Court first resolved the procedural question about its powers. The appellant argued that s 474L of the Crimes Act required the Court to treat the reference as if it were an appeal under the Criminal Appeal Act, thereby enlivening the s 6(1) unreasonable verdict ground. The Crown did not contest this interpretation, and the Court accepted it as correct.

On the substantive ground, the Court applied the test established by the High Court in M v The Queen (1994) 181 CLR 487, asking whether it was open to the fact-finder to be satisfied beyond reasonable doubt of the appellant's guilt on the whole of the evidence. The Court emphasised that it was required to pay full regard to the primary judge's advantage of having seen and heard the witnesses firsthand.

Studdert J found that there was direct evidence from eyewitnesses that supported the District Court judge's findings on both assaults. The features of the evidence highlighted by the appellant's submissions, whether considered individually or collectively, did not compel a conclusion contrary to that reached by the primary judge. The Court held that it was open to the primary judge to be satisfied beyond reasonable doubt as to the appellant's guilt on both charges.

The second ground of appeal, which concerned an alleged failure to consider the common law defence of lawful chastisement, was abandoned before the hearing and played no part in the Court's reasoning.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • Under s 474L of the Crimes Act, where a matter is referred to the Court of Criminal Appeal by the Attorney General under s 474C(1)(b), the Court is to deal with it as if the convicted person had appealed under the Criminal Appeal Act 1912, thereby enlivening the standard appellate grounds including the unreasonable verdict ground in s 6(1).
  • The test for an unreasonable verdict, as confirmed by the High Court in M v The Queen, requires the appellate court to ask whether it was open to the jury (or in this case the trial judge) to be satisfied beyond reasonable doubt of guilt on the whole of the evidence.
  • Appellate courts must pay full regard to the primary decision-maker's advantage of having seen and heard the witnesses, and must not substitute their own assessment of credibility where the primary judge's findings were reasonably open.
  • Sufficient direct eyewitness evidence existed to support the District Court judge's findings that both assaults occurred, notwithstanding the evidentiary challenges raised on appeal.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that individual or collective weaknesses in the evidence do not automatically render a verdict unreasonable where a finding of guilt remained legitimately open on that evidence.

Legislation and Cases Referenced

Legislation:
- Crimes Act, ss 474B, 474C, 474L
- Criminal Appeal Act 1912, ss 5, 6

Cases:
- M v The Queen (1994) 181 CLR 487
- Jones v The Queen (1997) 191 CLR 439
- MFA v The Queen (2002) 213 CLR 606