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Court of Criminal Appeal 5 February 2014

Michael v R

[2014] NSWCCA 2

Public order & justice offences
CRIMINAL LAW CONVICTION APPEAL WHETHER VERDICT WAS UNREASONABLE DETAILED ANALYSIS OF EVIDENCE NECESSARY CONCEDED INCONSISTENCIES IN CROWN CASE CONVICTION APPEAL DISMISSED

Citation: Michael v R [2014] NSWCCA 2
Court: NSW Court of Criminal Appeal
Date: 5 February 2014
Judges: Hoeben CJ at CL, Blanch J, Price J

Background

The applicant was a law clerk who was connected to the legal representation of a man (Mr Salim) charged with "take and detain for advantage" and "demand property with menaces" arising from an incident on 27 August 2010. The alleged victim had been conveyed in a vehicle belonging to a third party, Mr Phillips, whose evidence was therefore material to the prosecution of Mr Salim.

The Crown alleged that the applicant advised Mr Phillips, who knew he had been driving his own car at the time of the incident, to tell police he could not remember who was driving and that many people used the vehicle. Mr Phillips initially attended the police station accompanied by a person named "John" and declined to speak to detectives. He later attended again with written prompts on his hand but ultimately told police the truth: that he had been driving and that Mr Salim, the victim, and his own daughter were passengers. He also told police he had just received legal advice and had been told to say certain things.

The charges against Mr Salim were subsequently withdrawn, in part due to the exculpatory nature of Mr Phillips's statement. The applicant was tried before Judge Payne and a jury in the District Court at Parramatta, convicted of doing an act intending to pervert the course of justice contrary to s 319 of the Crimes Act 1900 (NSW), and sentenced to imprisonment with a non-parole period of 1 year and 3 months and a balance of term of 1 year.

  • Whether the guilty verdict was unreasonable and could not be supported by the evidence, given conceded inconsistencies in the Crown case
  • Whether the evidence was sufficient to establish the necessary intent to pervert the course of justice
  • Whether the sentencing judge made an incorrect factual finding and, if so, whether it affected the sentence
  • Whether the sentencing judge failed to consider alternatives to full-time custody
  • Whether the sentence of full-time imprisonment was manifestly excessive

Decision

Conviction appeal. The Court applied the well-established test for unreasonable verdict appeals: it was not enough for the applicant to identify material tending against guilt. The Court had to assess the whole of the evidence and determine whether it was open to the jury, acting reasonably, to be satisfied of guilt beyond reasonable doubt. The Court conducted a detailed review of the evidence given by the Crown's three witnesses, Detective Senior Constable Whale, Mr Phillips, and his mother Dale Phillips.

The Court acknowledged conceded inconsistencies in the Crown case, including differences between what Mr Phillips and his mother said about the meetings with the applicant. However, the Court found those inconsistencies did not undermine the overall Crown case to the point where the verdict was unreasonable. The jury, which had the advantage of observing the witnesses give evidence, was entitled to accept the core of the Crown's account. The Court was satisfied it was open to the jury to find the necessary intent established beyond reasonable doubt, and the conviction appeal was dismissed.

Sentence appeal. The applicant raised several grounds, including an alleged incorrect factual finding by the sentencing judge and a failure to consider alternatives to full-time custody. The Court accepted that one factual finding was incorrect, but found it had no material effect on the sentence actually imposed. On the question of alternatives to custody, the Court held that the sentencing judge's findings on objective gravity and the need for general deterrence and denunciation sufficiently justified a custodial sentence, and her Honour was not required to expressly address each non-custodial alternative.

On manifest excess, the Court applied the principles from House v The King and Makarian v The Queen, confirming that intervention requires demonstrated error and is not warranted merely because the appellate court might have imposed a different sentence. No such error was established, and all sentence grounds were dismissed.

Orders Made

  • Leave to appeal against conviction and sentence was granted, but both appeals were dismissed.
  • The applicant's bail was revoked forthwith.
  • The applicant was returned to custody on 5 February 2014, with the non-parole period expiring on 30 January 2015 and the balance of term expiring on 29 January 2016.

Key Takeaways

  • An unreasonable verdict ground requires more than identifying inconsistencies or material pointing against guilt; the appellate court must assess the whole of the evidence and determine whether a reasonable jury could have been satisfied of guilt beyond reasonable doubt.
  • Where Crown witnesses give evidence with some inconsistencies, those inconsistencies do not automatically undermine a conviction, particularly where the jury had the benefit of observing those witnesses.
  • A factual error by a sentencing judge will not lead to appellate intervention unless it can be shown to have had a material effect on the sentence imposed.
  • Under s 319 of the Crimes Act 1900 (NSW), the prosecution must establish that the accused acted with the intent to pervert the course of justice; the Court confirmed this intent element can be inferred from the circumstances established in evidence.
  • In dismissing the manifest excess ground, the Court of Criminal Appeal reaffirmed that sentencing appeals require demonstrated error in the House v The King sense, not merely a different view of what sentence was appropriate.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 319
- Criminal Appeal Act 1912 (NSW), s 6(1)
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)

Cases
- Baxter v Regina [2007] NSWCCA 237; 173 A Crim R 284
- BCM v The Queen [2013] HCA 48
- Carroll v The Queen [2009] HCA 13; 83 ALJR 579
- Col v R [2013] NSWCCA 302
- Einfeld v R [2010] NSWCCA 87; 200 A Crim R 1
- Hardie v Regina; Phillipsen v Regina [2012] NSWCCA 6
- House v The King [1936] HCA 40; 55 CLR 499
- Libke v R [2007] HCA 30; 230 CLR 559
- M v R [1994] HCA 63; 181 CLR 487
- MFA v The Queen [2002] HCA 53; 213 CLR 606
- Makarian v The Queen [2005] HCA 25; 228 CLR 357
- Nguyen v R [2004] NSWCCA 332; 149 A Crim R 343
- Oudomvilay v Regina [2006] NSWCCA 275
- R v Marinellis [2001] NSWCCA 328
- Marracos v R [2008] NSWCCA 267
- R v Mercael [2010] NSWCCA 36
- R v Mulato [2006] NSWCCA 282
- R v Pangallo [1991] 56 A Crim R 441
- SKA v The Queen [2011] HCA 13; 243 CLR 400
- Zamagias v R [2002] NSWCCA 17