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Court of Criminal Appeal 3 October 2014

Afacan v R

[2014] NSWCCA 203

Public order & justice offences
CRIMINAL LAW CONVICTION APPEAL BAD CHARACTER OF VICTIM INCONSISTENCIES IN VICTIM'S EVIDENCE WHETHER VERDICT UNREASONABLE ADVANTAGE OF JURY

Citation: Afacan v R [2014] NSWCCA 203
Court: Court of Criminal Appeal, NSW
Date: 3 October 2014
Judge(s): Hoeben CJ at CL (lead judgment); McCallum J; Bellew J

Background

The applicant was convicted following a jury trial before Judge Letherbarrow SC of detaining a person without consent and with the intention of obtaining an advantage, contrary to s 86(2)(a) of the Crimes Act 1900 (NSW). The offence was aggravated because it was committed in company. The applicant was sentenced to a two-year intensive correction order.

The alleged victim was a 60-year-old Melbourne man who had accumulated a significant drug debt with Sydney-based suppliers. He travelled to Sydney with the applicant and others purportedly to settle that debt. The Crown alleged that, on the return journey on 17 October 2011, the applicant and his companions detained the victim in a motor vehicle, threatened him, and demanded $10,000 from him or his family.

The victim escaped when the car stopped at a Caltex service station at Canley Heights. He fled on foot, sought help from nearby restaurants, called triple zero, and was witnessed being pursued by the applicant and his companions. The applicant denied any wrongdoing in an electronically recorded interview with police, claiming he had simply been helping the victim resolve his debt situation.

  • Whether the jury's verdict was unreasonable or could not be supported having regard to the evidence, applying the test in SKA v R [2011] HCA 13
  • Whether the victim's evidence, which contained inconsistencies and was given by a witness with a criminal background involving drug use and supply, was capable of supporting a conviction beyond reasonable doubt
  • Whether the objective corroboration, including CCTV footage, triple zero recordings, and bystander evidence, was sufficient to sustain the verdict

Decision

Hoeben CJ at CL rejected the submission that the verdict was unreasonable. His Honour acknowledged that the victim was a flawed witness whose evidence contained inconsistencies and who had a poor character, having been involved in drug supply and use. However, the Chief Judge applied the principle that a jury has a significant advantage in assessing a witness's credibility through direct observation.

Central to the court's reasoning was the CCTV footage from the service station. The footage captured the victim escaping from the car and showed the applicant and his companions reacting with sudden surprise before rushing from the shop to pursue him. His Honour described this as the most powerful evidence in the Crown case, treating it as compelling objective corroboration of the victim's account that he had been detained and was genuinely afraid.

Additional corroboration came from the triple zero calls, in which the victim expressed fear while being chased, and from the evidence of two bystanders who witnessed the pursuit and heard the victim ask for help. The Chief Judge was satisfied that, viewed in combination with the jury's advantage in assessing the victim directly, it was well open to the jury to be satisfied beyond reasonable doubt.

McCallum J conducted an independent assessment of the evidence and reached the same conclusion. Her Honour noted that while the victim's account was open to criticism in several respects, it was ultimately coherent and plausible, and drew compelling support from independent sources, particularly the CCTV footage. Bellew J agreed with both judgments.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a jury's advantage in seeing and hearing a witness give evidence is a weighty consideration when an appellate court assesses whether a verdict is unreasonable under the SKA v R standard.
  • Significant inconsistencies in a complainant's evidence, and evidence of that complainant's bad character, do not automatically render a verdict unreasonable where substantial independent corroboration exists.
  • CCTV footage capturing the spontaneous and coordinated reaction of accused persons to a complainant's flight was treated as powerful objective evidence corroborating the complainant's account of detention and threats.
  • A conviction for detaining a person under s 86(2)(a) of the Crimes Act 1900 was upheld on the basis of circumstantial and objective evidence, even where the complainant's credibility had been substantially challenged in cross-examination.
  • The Court conducted its own independent assessment of the evidence in accordance with its obligations on an unreasonable verdict ground, rather than simply deferring to the jury's finding.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 86(2)(a) (detaining a person without consent with intention of obtaining an advantage, in circumstances of aggravation)

Cases
- SKA v R [2011] HCA 13; 243 CLR 400 (the applicable test for whether a verdict is unreasonable on appeal)