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Court of Criminal Appeal 27 April 2012

Khan v R

[2012] NSWCCA 74

Assault & violencePublic order & justice offences
CRIMINAL LAW APPEAL CONVICTION S 86(3) CRIMES ACT 1900 S 6 CRIMINAL APPEAL ACT 1912 WHETHER EVIDENCE TO SUPPORT CROWN CASE

Citation: Khan v R [2012] NSWCCA 74
Court: NSW Court of Criminal Appeal
Date: 27 April 2012
Judges: Macfarlan JA; RS Hulme J; Garling J

Background

The applicant was convicted after a District Court trial of detaining a person without consent and with the intention of holding him for ransom, while in company, and with actual bodily harm occasioned, contrary to s 86(3) of the Crimes Act 1900. Two co-accused were convicted of the same offence. The events occurred on the night of 4 to 5 September 2008 at a residential property in Doonside, NSW.

The Crown case was that the victim was lured to the applicant's home by the co-accused, then physically beaten in the backyard and threatened with a knife. The co-accused demanded $7,000 from the victim, who was held overnight. Police became involved after friends of the victim attended Blacktown Police Station to report the detention. The following afternoon, police stopped a vehicle driven by the applicant, in which all three accused and the victim were travelling.

The applicant was sentenced to a total term of four years and six months imprisonment, with a non-parole period of two years and eight months. He sought leave to appeal against his conviction on a single ground: that the jury's verdict was unsafe and unsatisfactory.

  • Whether leave to appeal was required under s 5(1)(b) of the Criminal Appeal Act 1912, given that the ground of appeal did not raise a question of law alone
  • Whether the jury's verdict was unreasonable or could not be supported having regard to the evidence, pursuant to s 6 of the Criminal Appeal Act 1912
  • Whether any hypothesis consistent with the applicant's innocence was open on the evidence

Decision

Macfarlan JA (with Hulme J and Garling J agreeing) confirmed that leave to appeal was necessary because the sole ground did not raise a pure question of law. Leave was granted, but the appeal was dismissed.

Applying the test from M v The Queen as restated in SKA v The Queen [2011] HCA 13, Macfarlan JA conducted an independent assessment of the evidence to determine whether it was open to the jury to be satisfied beyond reasonable doubt of the applicant's guilt. His Honour reviewed the full trial evidence, which spanned 23 court days, drawing substantially from the Crown's trial summary whose accuracy the applicant's counsel accepted.

The court found strong evidentiary support for the victim's account. This included the victim's own testimony, the evidence of his friend Vikram concerning ransom demands relayed by telephone, police-intercepted and recorded phone calls, medical evidence of the victim's physical injuries, and a piece of cardboard in the applicant's possession bearing the victim's mobile number and a figure consistent with the amount demanded.

The court rejected the submission that any alternative hypothesis consistent with the applicant's innocence was open on the evidence. The applicant had provided his home as the location of the detention, was present throughout, drove the car in which the group was found, and took no steps to dissent from the conduct of the co-accused. The jury's acceptance of the victim's and Vikram's evidence was described as overwhelmingly supported by the trial evidence as a whole.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a ground challenging a verdict as unsafe and unsatisfactory does not raise a question of law alone, and therefore requires leave under s 5(1)(b) of the Criminal Appeal Act 1912.
  • Under s 6 of the Criminal Appeal Act 1912, the appellate court must make an independent assessment of the evidence, both as to its sufficiency and quality, asking whether it was open to the jury to be satisfied beyond reasonable doubt of the accused's guilt.
  • A conviction for an offence under s 86(3) of the Crimes Act 1900 can be sustained on the basis of presence, provision of premises, and participation in conduct, even where the physical violence was carried out by co-accused.
  • Sufficient corroborating evidence existed in the form of intercepted telephone calls, medical findings, and a physical exhibit to support the victim's account, making the verdict one the jury was entitled to reach.
  • No error was established simply because the applicant did not personally threaten the victim or demand the ransom, where his overall conduct was inconsistent with any innocent hypothesis.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 86(3)
- Criminal Appeal Act 1912 (NSW), ss 5(1)(a), 5(1)(b), 6

Cases:
- SKA v The Queen [2011] HCA 13; 243 CLR 400
- Rasic v R [2009] NSWCCA 202
- M v The Queen (referenced within SKA v The Queen)
- MFA v The Queen (referenced within SKA v The Queen)