Citation: Krishna v Director of Public Prosecutions (NSW) [2007] NSWCCA 318
Court: NSW Court of Criminal Appeal
Date: 23 November 2007
Judge(s): Basten JA; Latham J; Rothman J
Background
The appellant was convicted by a jury, alongside a co-accused, of robbery with wounding under s 98 of the Crimes Act 1900 (NSW). The offence arose from an incident at a Liverpool motel in June 2005, where the prosecution alleged the appellant and his co-accused lured the victim to a motel room, demanded money from him, and struck him on the head with a large knife or meat cleaver. The victim sustained wounds to his scalp and left forearm, the latter occurring when he attempted to escape through a window.
The defence version was that the appellant and his co-accused had arrived at the room to find the victim in a compromising situation with the appellant's girlfriend, and that the victim's injuries resulted from his own attempt to flee through the window. Conflicting accounts from other witnesses in the room added complexity to the factual picture.
The appellant was sentenced in the District Court to 9 years and 4 months imprisonment, comprising a non-parole period of 7 years with a balance of 2 years and 4 months. He appealed against both conviction and sentence to the Court of Criminal Appeal.
Legal Issues
- Whether the conviction appeal was brought as of right or required leave, given the grounds were not limited to questions of law alone
- Whether the failure to call an eyewitness (Ms Devi), who was unavailable, constituted a miscarriage of justice
- Whether the prosecution's failure to produce the weapon at trial undermined the verdict
- Whether the verdict was unreasonable or unsupported by the evidence
- Whether the sentencing judge erred in placing the offence within the mid-range of objective seriousness, thereby applying the standard non-parole period
Decision
On the leave question, Basten JA noted that a convicted person has an appeal as of right only where the ground involves a question of law under s 5(1)(a) of the Criminal Appeal Act 1912 (NSW). His Honour expressed doubt about whether the appellant's grounds truly raised questions of law, but proceeded on the assumption that leave was not required given the Director did not contest the point. Rothman J addressed the issue in greater depth, confirming that an appeal based on the unreasonableness of a verdict is a question of fact, not law alone, and therefore requires leave. His Honour further distinguished between a ground alleging a total absence of evidence on an element (a question of law) and a ground alleging that evidence was unbelievable, insufficient, or outweighed (a question of fact or mixed law and fact).
On the alleged miscarriage of justice, the court found no authority supporting the proposition that a prosecution's failure to call an unavailable eyewitness could constitute a miscarriage of justice. The court rejected this ground. As for the absence of the weapon at trial, the court held this was a matter the accused could place before the jury, but it carried no weight as a basis for challenging the verdict on appeal.
On the unreasonable verdict ground, the court found that the challenge depended on factual inconsistencies between witnesses, which were properly matters for the jury to assess and resolve. There was no basis to disturb the verdict.
On sentence, the Court of Criminal Appeal granted leave to appeal but dismissed the sentence appeal. The sentencing judge's assessment that the offence fell within the mid-range of objective seriousness was found to be without error, making the standard non-parole period applicable.
Orders Made
- Leave to appeal against sentence granted, and, if necessary, against conviction
- Appeal against conviction dismissed
- Appeal against sentence dismissed
Key Takeaways
- Under s 5(1)(a) of the Criminal Appeal Act 1912 (NSW), a convicted person appeals as of right only on a ground involving a question of law alone; all other grounds, including unreasonable verdict, require leave.
- A complete absence of evidence on an element of an offence raises a question of law alone, but where evidence exists and is merely said to be weak, improbable, or outweighed, the question is one of fact or mixed law and fact, requiring leave to appeal.
- No authority supports the proposition that a prosecution's failure to call an unavailable eyewitness constitutes a miscarriage of justice warranting the setting aside of a conviction.
- The failure to produce a weapon at trial does not, of itself, provide a viable basis for a conviction appeal; its significance is a matter for the jury at trial.
- Rothman J observed that the Court's longstanding practice of treating conviction appeals as appeals of right reflects common sense, but until the legislation is clarified, leave must formally be sought on all grounds that do not raise pure questions of law.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 98
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44, Part 4, Div 1A
- Criminal Appeal Act 1912 (NSW), ss 5, 6
- Evidence Act 1995 (NSW), s 65
Cases:
- Williams v The Queen (1986) 161 CLR 278
- Morris v The Queen (1987) 163 CLR 454
- M v The Queen (1994) 181 CLR 487
- R v R (1989) 18 NSWLR 74
- Richardson v The Queen (1974) 131 CLR 116
- Collector of Customs v Agfa-Gaevert (1996) 186 CLR 389
- Australian Gas Light Company v Valuer-General (1940) 40 SR (NSW) 126
- Haider v JP Morgan [2007] NSWCA 158
- Ormwave Pty Limited v Smith [2007] NSWCA 210
- Mulato v Regina [2006] NSWCCA 282
- Attorney General for the State of NSW v X (2000) 49 NSWLR 653
- Hutchinson v RTA [2000] NSWCA 332