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Court of Criminal Appeal 20 December 2013

Flanagan v R

[2013] NSWCCA 320

Also reported as (2013) 236 A Crim R 255
Assault & violence
CRIMINAL LAW APPEAL AGAINST CONVICTION APPEAL AGAINST CONVICTION APPEAL AGAINST CONVICTION APPEAL CONVICTION

Citation: Flanagan v R [2013] NSWCCA 320
Court: Court of Criminal Appeal, New South Wales
Date: 20 December 2013
Judge(s): Beazley P; Fullerton J; Campbell J

Background

The appellant was convicted by a jury in March 2012 of two offences arising from an early-morning street altercation in Newcastle: wounding a man with intent to cause grievous bodily harm (Crimes Act 1900, s 33(1)(a)) and affray (s 93C(1)). The Crown's case was that the appellant stabbed the complainant in the chest with a knife during a fight that also involved her intoxicated younger brother. CCTV footage of the incident formed a central part of the evidence against her.

The appellant gave evidence that she was not carrying a knife and had intervened in the fight only to break it up, picking up a stick from the ground as she approached. No weapon was recovered by police, but medical evidence described a penetrating chest wound consistent with a single sharp instrument, and a blood trail led from the scene to a nearby location where the complainant sought assistance.

After sentencing to 2 years and 6 months imprisonment for the wounding offence (with an 8-month fixed term for affray), the appellant was granted bail by the Court of Criminal Appeal in February 2013 pending her appeal. She challenged her conviction on four grounds, but did not seek leave to appeal against sentence.

  • Whether the trial judge's failure to leave self-defence to the jury occasioned a miscarriage of justice (requiring leave under Criminal Appeal Rules, r 4)
  • Whether the trial judge's failure to explain the legal consequences of an accidental wounding occasioned a miscarriage of justice (also requiring leave under r 4)
  • Whether the trial judge's statement in the summing-up that there was "nothing to suggest" the relevant acts were lawful occasioned a miscarriage of justice (also requiring leave under r 4)
  • Whether the jury's verdict was unreasonable or could not be supported by the evidence (the "unsafe and unsatisfactory" ground, for which leave was granted)

Decision

Ground 1 (self-defence direction): The Court refused leave under r 4. It concluded that, had the appellant sought a self-defence direction at trial, the trial judge would and should have refused it. The evidence did not satisfy the elements of the statutory defence under s 418 of the Crimes Act 1900. Because no viable basis for a self-defence direction existed, the omission could not amount to a miscarriage of justice.

Ground 2 (accidental wounding): Leave was again refused. The Court characterised this ground as an attempt to run a different case on appeal, one that had no foundation in the evidence and had not been raised at trial. The appellant could not now introduce an accidental-injury theory that was not part of the case as conducted before the jury.

Ground 3 (summing-up comment on lawfulness): The Court refused leave. Reading the trial judge's summing-up in context, her Honour had not in fact said there was nothing to suggest the appellant's actions were lawful. The trial judge was not obliged to direct the jury on self-defence or a citizen's right to arrest, neither of which arose from the evidence.

Ground 4 (unreasonable verdict): Applying the test from M v The Queen (1994) 181 CLR 487, the Court conducted an independent assessment of the evidence. It concluded that, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the appellant had deliberately inflicted the wound. The verdict was neither unreasonable nor unsupported by the evidence, and the appeal was dismissed.

The Court also noted a sentencing oversight: the trial judge had not pronounced a parole order as required by Crimes (Sentencing Procedure) Act 1999, s 50, which mandates such an order where a total sentence is less than three years. The Court of Criminal Appeal remedied this in making its orders under Criminal Appeal Act 1912, s 28A.

Orders Made

  • Leave granted to advance ground 4 of the appeal
  • Appeal dismissed
  • Under Criminal Appeal Act 1912, s 28A, the sentence for wounding with intent to cause grievous bodily harm was directed to recommence on 20 December 2013, with the non-parole period expiring on 15 February 2014 and the additional term expiring on 14 October 2015
  • The appellant was ordered to be released on parole on 16 February 2014, subject to supervision prescribed by the regulations under the Crimes (Administration of Sentences) Act 1999 for the balance of her term

Key Takeaways

  • Leave under Criminal Appeal Rules, r 4 will be refused where the ground sought to be raised on appeal had no viable foundation in the evidence at trial. If a self-defence direction would and should have been refused had it been sought, its omission cannot constitute a miscarriage of justice.
  • Raising an entirely new factual theory on appeal (here, accidental wounding) that was not run at trial and lacks an evidentiary basis is an insufficient basis on which to obtain leave to argue a conviction appeal.
  • In applying the "unreasonable verdict" standard from M v The Queen, the Court of Criminal Appeal conducts its own independent assessment of the evidence to determine whether the jury's conclusion was one that was open to it beyond reasonable doubt.
  • Where a sentencing court imposes a total sentence of less than three years and fails to pronounce the parole order mandated by Crimes (Sentencing Procedure) Act 1999, s 50, the Court of Criminal Appeal has the power under Criminal Appeal Act 1912, s 28A to remedy that omission when making orders on appeal, even where sentence is not under challenge.
  • Time spent at liberty on bail pending a criminal appeal does not count toward the term of imprisonment under Criminal Appeal Act 1912, s 18(2), meaning a sentence may recommence upon dismissal of the appeal.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 33(1)(a), 93C(1), 418
- Criminal Appeal Act 1912 (NSW), ss 18(2), 28A
- Criminal Appeal Rules, r 4
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 50
- Crimes (Administration of Sentences) Act 1999 (NSW)
- Bail Act 1978 (NSW), s 30
- Evidence Act 1995 (NSW)
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)

Cases:
- M v The Queen [1994] HCA 63; 181 CLR 487 (applied)
- MFA v The Queen [2002] HCA 53; 213 CLR 606
- SKA v The Queen [2011] HCA 13; 243 CLR 400
- Pemble v The Queen [1971] HCA 20; 124 CLR 107
- Stevens v R [2005] HCA 65; 227 CLR 319
- Domican v R [1992] HCA 13; 173 CLR 555
- Gipp v The Queen [1998] HCA 21; 194 CLR 106
- Nudd v R [2006] HCA 9; 162 A Crim R 301
- R v Abusafiah (1991) 24 NSWLR 531
- Carney v R [2011] NSWCCA 223; 217 A Crim R 201
- Darwiche v R [2011] NSWCCA 62; 209 A Crim R 424
- Douglas v R [2005] NSWCCA 419
- Mencarious v R [2008] NSWCCA 237; 189 A Crim R 219
- R v Dudko [2002] NSWCCA 336; 132 A Crim R 371
- R v Wilson [2005] NSWCCA 20; 62 NSWLR 346