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Court of Criminal Appeal 4 April 2005

Regina v Niass

[2005] NSWCCA 120

Theft & property

Citation: Regina v Niass [2005] NSWCCA 120
Court: New South Wales Court of Criminal Appeal
Date: 4 April 2005
Judge(s): Hunt AJA, Grove J, Hall J

Background

The appellant was convicted in the Parramatta District Court on one charge of break, enter and steal. He was alleged to have participated in a joint criminal enterprise to steal a bobcat from a factory, by providing his truck to transport it. There was no dispute that the factory was broken into and the bobcat stolen. The only contested issue was whether the appellant knew the criminal nature of the enterprise.

The appellant's account was that he had been approached by two unknown men outside his home, agreed to transport what he believed was their own bobcat for $400, drove to the agreed location at around 12.30 am, and fell asleep in his cabin until he was woken and told the bobcat was ready to load. The two other men fled when police arrived and were never found.

The appellant's uncle gave evidence corroborating part of the appellant's version. Following his conviction, the appellant appealed on the single ground that the jury's verdict was unreasonable or could not be supported by the evidence.

  • Whether it was open to the jury to reject the appellant's account and be satisfied beyond reasonable doubt of his guilt
  • Whether the Crown case was properly characterised as circumstantial, requiring a circumstantial evidence direction
  • Whether the trial judge was required to give a Liberato direction (a direction that the jury may have a reasonable doubt even if they do not positively believe the accused's evidence)
  • Whether the absence of a Liberato direction caused a miscarriage of justice

Decision

The Court of Criminal Appeal dismissed the appeal and upheld the conviction. Conducting its own independent assessment of the evidence under the test in M v The Queen and Knight v The Queen, the Court found it was open to the jury to be satisfied beyond reasonable doubt that the appellant knew the enterprise was criminal. Relevant circumstances included the timing (the early hours of the morning), the appellant's attendance at the precise location, the manner in which he positioned his truck, and witness evidence from a person present in the street at the time.

On characterisation of the Crown case, the Court clarified that the case was not purely circumstantial. There was direct evidence of the breaking, entering, and stealing, and of the appellant's participation by providing transport. The only element requiring inference was the appellant's state of mind. Because the need for inference related solely to state of mind rather than to the occurrence of the actus reus (the physical act), a circumstantial evidence direction was not required.

On the Liberato direction, the Court confirmed that such a direction is not required as a matter of law in every case. It is most appropriate where the jury might otherwise think that the accused's evidence can only raise a reasonable doubt if they positively believe it to be true, particularly where the jury is invited to choose between Crown and defence witnesses. Here, the trial judge had directed the jury that if the appellant's version "could possibly be true" they must acquit, which sufficiently addressed that risk. The directions on onus and standard of proof, taken as a whole, left no room for the misapprehension that a Liberato direction is designed to prevent.

Orders Made

  • The appeal against conviction is dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed the test under M v The Queen: where a conviction is challenged as unreasonable, the appellate court must make its own independent assessment but give full weight to the jury's advantage of seeing and hearing the witnesses.
  • A case does not become a purely circumstantial one merely because the accused's state of mind must be proved by inference. Where all physical elements of the offence are established by direct evidence, no circumstantial evidence direction is required.
  • A Liberato direction is not a mandatory requirement in every criminal trial. Its absence will only constitute an error where it gives rise to a miscarriage of justice, and leave must be obtained to raise the point on appeal.
  • The core purpose of a Liberato direction is to prevent a jury from thinking that the accused's evidence can only raise a reasonable doubt if they positively believe it. A direction that the jury must acquit if the accused's version "could possibly be true" can fulfil the same function.
  • Sufficient evidence existed in this case, drawn from the surrounding circumstances, to support the jury's conclusion that the appellant knew the enterprise involved breaking and entering a factory to steal the bobcat.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 6
- Criminal Appeal Rules, r 4

Cases:
- Knight v The Queen (1992) 175 CLR 49
- La Fontaine v The Queen (1976) 136 CLR 62
- Liberato v The Queen (1985) 159 CLR 507
- M v The Queen (1994) 181 CLR 487
- MFA v The Queen (2002) 213 CLR 606
- Regina v Burt (2003) 140 A Crim R 555
- Regina v Chen, Siregar & Isman (2002) 130 A Crim R 300
- Regina v Tillott (1991) 53 A Crim R 46
- Regina v Wilson [2005] NSWCCA 20
- Salmon v The Queen [2001] WASCA 270