Wildsmith v R

Citation: Wildsmith v R [2012] NSWCCA 116
Court: NSW Court of Criminal Appeal
Date: 4 June 2012
Judge(s): McClellan CJ at CL (principal judgment); Johnson J and Rothman J (agreeing)

Background

The appellant was convicted of murder following a group attack on a man in western Sydney on 27 December 2007. He was tried alongside four co-accused, two of whom were slightly older than 18 and three of whom were younger. The Crown alleged the attack was motivated by revenge for the deceased's treatment of a woman connected to the group, and that the participants had retrieved weapons before lying in wait for the deceased at an underpass.

The Crown prosecuted the case on the basis of joint criminal enterprise: that the participants planned to inflict grievous bodily harm, or at least knew that weapons would be used and that serious harm was a possible consequence. The appellant was alleged to have sprayed mace and struck the deceased during the attack. Three persons who were present but not charged gave evidence for the prosecution.

Two co-accused were convicted of murder and three younger co-accused were convicted of manslaughter. The appellant sought leave to appeal his murder conviction on two grounds.

Legal Issues

• Whether the jury's verdict of murder was unreasonable or unsupported by the evidence, given the reliability concerns about the three Crown witnesses
• Whether the appellant's conviction for murder was inconsistent with, and therefore unsustainable alongside, the manslaughter verdicts returned against the three younger co-accused

Decision

On the first ground, the court applied the test from M v The Queen and SKA v The Queen, requiring an independent appellate assessment of the sufficiency and quality of the evidence. The court acknowledged that the three prosecution witnesses had each lied to police, changed their accounts, and had personal incentives to shift blame given their own potential criminal liability. However, the jury had been fully exposed to those credibility issues through cross-examination and had been given appropriate warnings under s 165 of the Evidence Act 1995. The court concluded it was not persuaded that the verdict was dangerous or unreasonable, and declined to substitute its own view for that of the jury.

On the second ground, the court considered whether the differing verdicts were rationally explicable or genuinely inconsistent. The court drew on Osland v The Queen and R v NZ, observing that inconsistent verdicts can indicate a jury's reasoning process has failed, but that different verdicts in a joint trial may be rationally explained by differences in the evidence relating to each accused. The trial judge had directed the jury to assess each accused separately, and those directions were sound.

The court accepted that the youth of the three co-accused convicted of manslaughter, and the particular evidence bearing on each of them individually, provided a rational basis for the differentiated verdicts. The appellant's comparatively greater apparent awareness of and involvement in the joint enterprise distinguished his position from that of the younger accused. No impermissible inconsistency was established.

Orders Made

• Leave to appeal granted
• Appeal dismissed

Key Takeaways

• The Court of Criminal Appeal confirmed that it must make its own independent assessment of the sufficiency and quality of the evidence when asked to determine whether a verdict was unreasonable, but will not simply substitute its view where the jury's verdict has a rational basis.
• Where Crown witnesses have incentives to shift blame, have given inconsistent accounts, or have admitted lying, those credibility issues do not automatically render a conviction unsafe, provided the jury was properly directed and exposed to the full extent of the unreliability through cross-examination.
• Differing verdicts among co-accused in a joint trial do not necessarily constitute impermissible inconsistency. The critical question is whether the different outcomes can be rationally explained by differences in the evidence relevant to each accused.
• In dismissing the appeal, the court found that the younger co-accused's manslaughter verdicts were rationally explicable by their age, their lesser or later participation in the enterprise, and the evidence specific to each of them.
• A trial judge's direction to consider each accused individually, and to recognise that different answers may be appropriate for different accused, provides a sound basis for differentiated verdicts within a single joint trial.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), s 165

Cases:
- M v The Queen [1994] HCA 63; (1994) 181 CLR 487
- SKA v The Queen [2011] HCA 13; 243 CLR 400
- Osland v The Queen (1998) 197 CLR 316
- R v NZ [2005] NSWCCA 278; (2005) 63 NSWLR 628