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Court of Criminal Appeal 31 May 2012

Scott Alan May v Regina

[2012] NSWCCA 111

Homicide
CRIMINAL LAW APPEAL CONVICTION EVIDENCE APPEAL CONVICTION

Citation: Scott Alan May v Regina [2012] NSWCCA 111
Court: NSW Court of Criminal Appeal
Date: 31 May 2012
Judges: Bathurst CJ at [1]; Simpson J at [342]; Harrison J at [417]

Background

The appellant was convicted by a jury on 4 June 2008 of the murder of a man at Callan Park, Rozelle, in May 2003. The Crown alleged the appellant and the deceased were rival drug dealers, and that the appellant arranged for an associate, Mr Ryan Burnes, to shoot the deceased. The primary Crown case was that the appellant gave a pre-arranged signal to Burnes to carry out the killing. Alternatively, the Crown relied on joint criminal enterprise.

The appellant was sentenced to 36 years imprisonment with a non-parole period of 27 years. He sought leave to appeal against both conviction and sentence, with leave required because the appeal was filed out of time.

The conviction rested substantially on the evidence of Burnes, who was himself involved in the events. Supporting evidence included telephone records, witness accounts of hearing gunshots, and forensic material, but no witness directly observed the alleged pre-arrangement between the appellant and Burnes.

  • Whether the jury's verdict of guilty was unreasonable and could not be supported by the evidence, having regard particularly to the reliability of Burnes' testimony
  • Whether the trial judge's directions on extended joint criminal enterprise were erroneous and caused a miscarriage of justice
  • Whether the trial judge misdirected the jury on what evidence was available to independently verify Burnes' account
  • Whether the trial judge erred by failing to leave manslaughter as an alternative verdict for the jury

Decision

Ground 1: Unreasonable verdict. All three judges concluded the conviction was unreasonable and could not be supported by the evidence, applying the well-established tests from M v R (1994) 181 CLR 487 and MFA v R (2002) 213 CLR 606. The majority view, expressed in detail by Simpson J and endorsed by Harrison J, was that Burnes was a wholly incredible and unreliable witness whose evidence contained manifold inconsistencies and contradictions. Those deficiencies were not of a kind that could be resolved by the jury's advantage of seeing and hearing the evidence delivered in person.

While other evidence, including telephone records and forensic findings, was capable of supporting the conclusion that Burnes had committed the murder, none of it went directly to the circumstances of any pre-arrangement between the appellant and Burnes, nor to any request to kill the deceased. The Court was not satisfied to the requisite degree that a jury ought not to have experienced a reasonable doubt, and found there was a significant possibility that an innocent person had been convicted.

Remaining grounds. Because Ground 1 succeeded and the conviction was quashed, the Court did not need to determine the remaining grounds concerning the directions on extended joint criminal enterprise, independent verification of Burnes' evidence, and the failure to leave manslaughter as an alternative. Those grounds were therefore not decided.

Orders Made

• The appeal is allowed
• The conviction is quashed
• A verdict of acquittal is entered

The Court allowed the appeal, quashed the conviction, and entered a verdict of acquittal.

Key Takeaways

  • The Court of Criminal Appeal confirmed that a conviction must be quashed where the verdict is unreasonable in the sense that a properly instructed jury, acting rationally, could not have been satisfied beyond reasonable doubt on the whole of the evidence.
  • Where a conviction depends substantially on the testimony of a single, heavily compromised witness, corroborating evidence that does not directly address the essential elements of the Crown case may be insufficient to render the verdict reasonable.
  • Inconsistencies and contradictions in a witness's account can render a conviction unreasonable even accounting for the jury's advantage in assessing demeanour; that advantage is not a universal answer to profound credibility concerns.
  • A verdict of acquittal, rather than a retrial, was the appropriate order where the evidence was found to be "wholly lacking in any probative force" on the critical issues.
  • The decision does not extend beyond its particular facts; its significance lies in the application of settled unreasonable verdict principles to a case heavily dependent on a single unreliable accomplice witness.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5
- Criminal Appeal Rules, r 4
- Evidence Act 1995 (NSW), Pt 3 Div 7
- Surveillance Devices Act 2007 (NSW)
- Listening Devices Act 1984 (NSW)
- Director of Public Prosecutions Act 1986 (NSW), s 19
- Criminal Code (Cth), s 11.5

Cases:
- M v R [1994] HCA 63; (1994) 181 CLR 487
- MFA v R [2002] HCA 53; (2002) 213 CLR 606
- SKA v R [2011] HCA 13; (2011) 243 CLR 400
- MacAuliffe v R [1995] HCA 37; (1995) 183 CLR 108
- Osland v R [1998] HCA 75; (1998) 197 CLR 316
- Handlen v R [2011] HCA 51; (2011) 283 ALR 427
- Conway v R [2002] HCA 2; (2002) 209 CLR 203
- Gillard v R [2003] HCA 64; (2003) 219 CLR 1
- R v LK [2010] HCA 17; (2010) 241 CLR 177
- Johns v R [1980] HCA 3; (1980) 143 CLR 108
- R v Kanaan [2005] NSWCCA 385; (2005) 64 NSWLR 527
- R v Tangye (1997) 92 A Crim R 545
- R v Taufahema [2007] HCA 11; (2007) 228 CLR 232