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Court of Criminal Appeal 25 June 2010

Sever v R

[2010] NSWCCA 135

Fraud & dishonesty
CRIMINAL LAW APPEAL AGAINST CONVICTION CRIMINAL LAW APPEAL AGAINST CONVICTION VERDICT NOT OPEN ON THE EVIDENCE

Citation: Sever v R [2010] NSWCCA 135
Court: New South Wales Court of Criminal Appeal
Date: 25 June 2010
Judge(s): McClellan CJ at CL; Latham J; Schmidt J

Background

The appellant was the sole director of a commercial joinery and shopfitting business operating out of factory premises in Queanbeyan, NSW. In the early hours of 1 June 2004, the factory was destroyed by fire. The Crown alleged the fire was deliberately lit using accelerant, with a taper or similar object thrown through a hole in the northern wall of the building, igniting material in the metal store.

The appellant had left the factory at approximately 6.39 pm on 31 May 2004, setting the alarm before attending a business dinner some 18 kilometres away. The Crown agreed he arrived home after 1.30 am and went to bed around 2.00 am. The alarm first activated at 2.52 am, placing significant constraints on any theory that the appellant personally lit the fire.

The Crown ran two cases at trial: first, that the appellant himself started the fire; and second, as an alternative, that he was party to a joint criminal enterprise with an unidentified person who did so. The jury convicted. The appellant appealed on the grounds that the joint criminal enterprise direction should not have been left to the jury, and that the verdict was unreasonable and unsupported by the evidence.

  • Whether the trial judge erred in permitting the jury to consider an alternative case based on joint criminal enterprise
  • Whether the trial judge's directions on joint criminal enterprise were deficient
  • Whether the verdict was unreasonable and incapable of being supported by the evidence, given the absence of evidentiary support for the joint criminal enterprise theory

Decision

The Court of Criminal Appeal upheld the appeal and quashed the conviction. The majority accepted that the trial judge was not necessarily in error for leaving the joint criminal enterprise case to the jury, but the real problem was that there was no evidentiary foundation capable of supporting a conviction on that basis.

Latham J, in a separate judgment with which Schmidt J agreed, identified a complete absence of evidence to support the joint criminal enterprise theory. There was no evidence identifying any potential co-offender, no evidence of any agreement between the appellant and another person, and no acts by the appellant suggestive of participation in such a scheme, such as payments to a third party or the acquisition of materials connected to the fire.

The Court found that the jury was likely unwilling to convict on the Crown's primary case, given the difficulties with the timing evidence. Conviction on the secondary case, in the absence of any supporting evidence, was therefore unreasonable. All three judges agreed the verdict could not stand.

The Court entered a verdict of acquittal rather than ordering a retrial, reflecting its conclusion that the evidence simply could not support a conviction on either case the Crown had advanced.

Orders Made

  • The appellant's conviction was quashed
  • A verdict of acquittal was entered

Key Takeaways

  • A joint criminal enterprise case brought against an accused who was absent at the time of the offence requires evidence beyond the circumstances of the offence itself, specifically evidence of an agreement and the accused's participation in it, such as communications with a co-offender or acts demonstrating shared purpose.
  • Where the Crown relies on a secondary case as an alternative basis for conviction, that case must itself have an evidentiary foundation; the Court of Criminal Appeal confirmed that a bare hypothesis of another person's involvement, without supporting evidence, cannot sustain a verdict.
  • The Court of Criminal Appeal found the verdict unreasonable in circumstances where the jury appeared reluctant to convict on the primary case, and the secondary case lacked any evidentiary support.
  • Timing and alibi evidence that creates genuine difficulty for the Crown's primary case does not, of itself, permit the Crown to rely on an alternative theory unsupported by evidence.
  • In quashing the conviction, the court entered an acquittal rather than ordering a retrial, consistent with the principle that a retrial is not appropriate where the evidence cannot support a conviction on any available case.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 197(1)(b)
- Criminal Appeal Act 1912 (NSW)

Key Cases:
- Barca v R (1975) 133 CLR 82
- M v R (1994) 181 CLR 487
- Osland v The Queen (1998) 197 CLR 316
- R v Hillier (2007) 228 CLR 618
- MFA v R (2002) 213 CLR 606
- R v Tangye (1997) 92 A Crim R 545
- Doney v R (1990) 171 CLR 207
- R v Prochilo [2003] NSWCCA 265
- Cittadini v R [2009] NSWCCA 302
- R v PL [2009] NSWCCA 256