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Court of Criminal Appeal 17 February 2006

WILLIAMS, Daniel Lee v REGINA

[2006] NSWCCA 26

Also reported as 160 A Crim R 151
Assault & violenceTheft & property
CRIMINAL LAW APPEAL AGAINST CONVICTION KIDNAPPING AND ATTEMPTED KIDNAPPING DIRECTIONS TO JURY CLAIM OF RIGHT UNREASONABLE VERDICTS ON THE EVIDENCE

Citation: WILLIAMS, Daniel Lee v REGINA [2006] NSWCCA 26
Court: NSW Court of Criminal Appeal
Date: 17 February 2006
Judge(s): McClellan CJ at CL; Howie J; Latham J

Background

The appellant was convicted in the District Court on three counts: kidnapping (detaining a man at Hamilton to recover a drug debt), attempted kidnapping (a later incident at Kurri Kurri), and maliciously inflicting grievous bodily harm with intent at Kurri Kurri. All four counts arose from a series of incidents between May and June 2001 in which the appellant allegedly used threats and physical violence to recover money he said was owed to him for marijuana. The complainant was the same person across all counts.

The appellant had been acquitted, along with his brothers, on a separate kidnapping count arising from an earlier incident on 9 May 2001. On the second kidnapping count, the appellant and one co-accused were convicted while four others were acquitted.

The appellant appealed against his convictions on several grounds, arguing errors in the trial judge's directions, unreasonable verdicts, and concerns about the reliability of the complainant's evidence.

  • Whether the trial judge's direction to the jury on "claim of right" (a defence based on a genuine belief in an entitlement to recover property or money) was adequate
  • Whether the trial judge adequately directed the jury on how to use an acquittal on one count when considering verdicts on other counts
  • Whether the verdicts were unreasonable or could not be supported having regard to the evidence, including concerns about the complainant's credit

Decision

The Court of Criminal Appeal dismissed all grounds of appeal and upheld the convictions. McClellan CJ at CL delivered the principal judgment, with Howie J and Latham J agreeing.

On the claim of right direction, the Court found that the trial judge had adequately instructed the jury on this defence. A genuine but mistaken belief that one is entitled to recover money or property can, in some circumstances, be relevant to intent in offences of this kind. The Court was satisfied the jury was properly guided on when and how to apply that principle.

On the acquittal direction, the Court found no error in the trial judge's approach to directing the jury about the significance of the acquittal on count one. The jury was entitled to consider each count separately on its own evidence, and the trial judge's directions appropriately reflected that position.

On the unreasonable verdict ground, the Court held that the various challenges to the complainant's credibility, including evidence about his banking activities and questions about a cheque, were matters properly placed before the jury. The Court emphasised that the jury had the considerable benefit of seeing and hearing the witnesses, and that this Court should not lightly interfere with jury verdicts where conflicting evidence has been weighed at trial. No basis for intervention was established.

Orders Made

  • Appeal dismissed

Key Takeaways

  • A claim of right defence, based on a genuine belief in an entitlement to recover a debt, can be relevant to the requisite intent in charges of kidnapping and grievous bodily harm, and must be properly left to the jury where it arises on the evidence.
  • Where an accused is acquitted on one count in a multi-count trial, the trial judge must direct the jury on how to treat that acquittal when considering remaining counts. No error was established in the direction given here.
  • In dismissing the unreasonable verdict ground, the Court of Criminal Appeal reaffirmed the principle from M v The Queen (1994) 181 CLR 487: an appellate court must give full weight to the jury's role as the primary fact-finder and to the advantage the jury holds in seeing and hearing witnesses.
  • Credibility challenges to a key Crown witness do not automatically render a verdict unreasonable. Provided such challenges are properly put to the jury, it remains for the jury to assess them.
  • Concurrent sentences of varying lengths can produce an effective term equal only to the longest sentence imposed, even where individual counts carry shorter terms.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 33 (maliciously inflicting grievous bodily harm with intent) and s 90A (kidnapping, since repealed)

Cases:
- M v The Queen (1994) 181 CLR 487
- R v Fuge (2001) 123 A Crim R 310
- R v John Tinkler (1859) 1 F&F 513; 175 ER 832
- R v Markuleski (2001) 52 NSWLR 82
- Walden v Hensler (1987) 163 CLR 561