AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
10
Court of Criminal Appeal 3 October 2014

Atai v R

[2014] NSWCCA 210

Homicide
CRIMINAL LAW MURDER APPEAL AGAINST CONVICTION MURDER APPEAL AGAINST SENTENCE SENTENCE NOT MANIFESTLY EXCESSIVE

Citation: Atai v R [2014] NSWCCA 210
Court: Court of Criminal Appeal, NSW
Date: 3 October 2014
Judge(s): Basten JA; R A Hulme J; Schmidt J

Background

The applicant was convicted by a jury of the murder of a man at Fairfield on 24 November 2009. The central prosecution evidence came from a witness, Mr Yazin, who gave an account of the applicant firing multiple shots at a house where he knew occupants were present, killing the deceased. The applicant was 18 years old at the time of the offence.

At trial, the defence sought to undermine the reliability of Mr Yazin's evidence and distance him from the events of the evening. The applicant was sentenced to 24 years' imprisonment with a non-parole period of 18 years and a balance of term of six years. No discount applied, as the applicant had not entered a plea.

The applicant sought leave to appeal both the conviction and the sentence. The grounds included the trial judge's refusal to give an unreliability warning under s 165 of the Evidence Act 1995 (NSW), a claim that the verdict was unreasonable or not supported by the evidence, and an allegation that the sentence was manifestly excessive.

  • Whether the trial judge erred by declining to give an unreliability warning under s 165(1)(d) of the Evidence Act 1995 (NSW) in respect of Mr Yazin, who the defence contended might reasonably have been criminally concerned in the events
  • Whether the verdict of the jury was unreasonable or could not be supported having regard to the evidence
  • Whether the trial judge erred in remarks to the jury about the absence of any challenge to witnesses' denials that they were the shooter
  • Whether the sentence of 24 years with an 18-year non-parole period was manifestly excessive

Decision

Unreliability warning under s 165: The trial judge rejected the application for an unreliability warning on the basis that the evidence identified by defence counsel did not establish that Mr Yazin might reasonably be supposed to have been criminally concerned in the relevant events. The Court of Criminal Appeal agreed this refusal was correct on the material put forward. The Court acknowledged that an alternative basis for the warning might have existed, but that it had not been developed at trial. Because the point was not properly put at trial and no evidential foundation was laid, no miscarriage of justice arose from the omission.

Unreasonable verdict: The Court granted leave to appeal on this ground but ultimately dismissed it. Applying the principles from M v The Queen (1994) 181 CLR 487, the Court conducted an independent assessment of the evidence. While the Court acknowledged that elements of Mr Yazin's evidence had been used by the defence to raise questions of reliability, it was not persuaded that a reasonable jury ought to have had a doubt that the applicant fired the gun, or that he possessed the necessary mental state for murder. The evidence of Mr Yazin, including his account of the applicant's possession of the weapon immediately before and after the shooting, was capable of establishing both.

Onus of proof and trial judge's remarks: The applicant contended that the trial judge's remarks, to the effect that the jury would have expected to hear a challenge to the witnesses' denials that they were the shooter if there had been one, undermined the onus of proof. The Court refused leave under Rule 4 of the Criminal Appeal Rules to rely on this ground and did not accept that the remarks constituted a miscarriage of justice.

Sentence: The Court dismissed the sentence appeal. The sentencing judge had taken into account the applicant's age, immaturity, and other subjective factors, as well as the statutory 20-year non-parole period for a mid-range murder. The sentencing judge found the offence fell above mid-range, noting the applicant could see people in the front of the house before firing and foresaw that his actions would probably result in death. The attempt to draw comparisons with other cases rested primarily on the ages of offenders rather than any analysis of the nature of the offending, and did not demonstrate error.

Orders Made

  • Leave to appeal against conviction granted (grounds 1 and 4)
  • Appeal against conviction dismissed
  • Leave to appeal against sentence granted
  • Appeal against sentence dismissed

Key Takeaways

  • Under s 165(1)(d) of the Evidence Act 1995 (NSW), for an unreliability warning to be warranted on the basis that a witness might reasonably have been criminally concerned in the events, a sufficient evidential foundation must be established at trial. Where that foundation is absent, no miscarriage of justice arises from the refusal to give the warning.
  • A party seeking a s 165 warning based on a witness's possible criminal involvement must elicit the necessary evidence at trial, including through cross-examination. Failure to do so at trial will ordinarily preclude reliance on the point on appeal.
  • In assessing whether a verdict is unreasonable under s 6(1) of the Criminal Appeal Act 1912 (NSW), the appellate court conducts an independent assessment of all the surrounding evidence to determine whether it was open to the jury to be satisfied of guilt beyond reasonable doubt. The Court of Criminal Appeal found that standard was met on the evidence here.
  • Sentence comparison exercises in murder appeals must engage with the nature and circumstances of the offending across the cases compared, not merely the ages of the respective offenders. The applicant's reliance on comparisons with younger offenders who had received discounts for pleas did not establish that his sentence was manifestly excessive.
  • Sentencing courts must account for statutory guideposts, including the standard non-parole period, alongside subjective factors. The presence of significant subjective considerations, such as youth and immaturity, does not prevent a sentence from reflecting deterrence, denunciation, and recognition of harm where the objective circumstances of the offence warrant it.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), s 165
- Criminal Appeal Act 1912 (NSW), s 6
- Criminal Appeal Rules (NSW), r 4
- Criminal Procedure Act 1986 (NSW)
- Children (Criminal Proceedings) Act (NSW), s 15A

Cases:
- M v The Queen [1994] HCA 63; 181 CLR 487
- Clark v R [2001] NSWCCA 494; 123 A Crim R 506
- Lee, Do Young v Regina; Lee, Seong Won v Regina [2013] NSWCCA 68
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
- Imnetu v R [2014] NSWCCA 99
- Kanaan v R [2006] NSWCCA 109
- R v Hamzy [2004] NSWCCA 243
- R v Burt [2003] NSWCCA 248; 140 A Crim R 555
- R v Barrett [2009] NSWSC 338
- R v Houri [2007] NSWSC 615