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8
Court of Criminal Appeal 31 January 2008

John Walsh NGATI v R

[2008] NSWCCA 3

Also reported as 180 A Crim R 384
Assault & violenceTheft & property
CRIMINAL LAW APPEAL AGAINST CONVICTION MAJORITY VERDICT JURY VOTING FIGURES WHETHER APPROPRIATE TO DISCLOSE

Citation: John Walsh Ngati v R [2008] NSWCCA 3
Court: New South Wales Court of Criminal Appeal
Date: 31 January 2008
Judge(s): Tobias JA, Hidden J, Barr J (Barr J writing; others agreeing)

Background

The appellant was convicted in the District Court of breaking and entering a dwelling house while in company and committing a serious indictable offence, namely assault occasioning actual bodily harm. The incident arose from a neighbourhood dispute at Airds on 15 June 2005, when the appellant walked with his wife and two children toward the victim's home. After the victim locked herself inside, the group broke a window to gain entry, and family members then assaulted her.

The Crown did not allege the appellant personally struck the victim. Instead, it alleged he was present inside the house, encouraging or standing ready to assist those who carried out the attack. The central factual question at trial was therefore whether the appellant himself had entered the house.

Other members of the appellant's family had already admitted their roles. His wife had pleaded guilty in the District Court, and the two children had admitted offences in the Children's Court.

  • Whether the jury's verdict was unreasonable or incapable of being supported by the evidence
  • Whether the trial judge erred in directing the jury
  • Whether the trial judge erred by disclosing the jury's voting figures to the parties
  • Whether the resulting sentence was excessive
  • Whether a sentencing disparity existed between the appellant's sentence and those imposed on his wife and children

Decision

Unreasonable verdict. Applying the test in M v The Queen (1994) 181 CLR 487, the Court assessed whether it was open to the jury, on the whole of the evidence, to be satisfied beyond reasonable doubt of the appellant's guilt. Two witnesses, the victim and her son, gave evidence placing the appellant inside the house. The victim described the appellant pacing between the dining room and lounge during the assault. Her son observed the appellant exit through the back door with his son and then re-enter. The Court found the jury's conclusion was plainly open on this evidence, and the verdict was neither unreasonable nor unsupported.

Jury directions and disclosure of voting figures. The appellant challenged the trial judge's directions and also argued it was inappropriate for the judge to disclose the majority voting figures to the parties. The Court dismissed both grounds, finding no error in the directions given, and no impropriety in how the voting information was handled.

Sentence appeal. The trial judge had imposed a sentence with a non-parole period representing forty per cent of the standard non-parole period, having found the offence fell below the middle of the range of objective seriousness. The Court found this was well within the available sentencing discretion. No specific error in the sentencing exercise was identified; the submission was essentially that the sentence was too long, which the Court rejected.

Disparity. The Court acknowledged that comparing sentences across the District Court and the Children's Court presents difficulties, given the unique sentencing options available for young offenders. However, the Court found the respective sentences bore the relationship one would expect given that the wife pleaded guilty to a materially less serious offence. The Court also noted that the appellant's presence and encouragement were central to the attack occurring at all.

Orders Made

  • Conviction appeal dismissed
  • Leave granted to appeal against sentence
  • Sentence appeal dismissed

Key Takeaways

  • A conviction for being present and encouraging an assault does not require proof that the accused personally inflicted any blows, provided the jury is satisfied the accused entered the premises and was there to assist or encourage.
  • The standard for setting aside a verdict as unreasonable, drawn from M v The Queen, requires the appellate court to ask whether it was open to the jury to reach the verdict on the whole of the evidence, while giving full weight to the jury's primary role and its advantage in seeing and hearing witnesses.
  • No error was established in the trial judge disclosing jury voting figures in the context of the majority verdict, and the Court found no misdirection in the jury directions given.
  • Sentencing disparity arguments involving comparisons between higher court sentences and Children's Court outcomes are permissible but are treated with caution, given the distinct sentencing framework applicable to young offenders.
  • In dismissing the sentence appeal, the Court confirmed that a non-parole period set at forty per cent of the standard non-parole period was within the proper exercise of sentencing discretion where the offence was assessed as below the mid-range of objective seriousness.

Legislation and Cases Referenced

Cases cited:
- M v The Queen (1994) 181 CLR 487
- Black v The Queen (1993) 179 CLR 44
- R v RJS [2007] NSWCCA 241
- R v VST [2003] VSCA 35
- R v Smith [1982] 2 NSWLR 608
- R v Burrell [2007] NSWCCA 65

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