AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
Court of Criminal Appeal 17 October 2014

Youkhanis v R

[2014] NSWCCA 220

Theft & property
CRIMINAL LAW APPEAL CONVICTION INCONSISTENT VERDICTS, WHETHER ALTERNATIVE CHARGES VERDICTS INCONSISTENT, WHETHER

Citation: Youkhanis v R [2014] NSWCCA 220
Court: NSW Court of Criminal Appeal
Date: 17 October 2014
Judge(s): Gleeson JA, Fullerton J, Garling J (Garling J delivering the principal judgment)

Background

The appellant was convicted by a jury in February 2012 of stealing from the person, contrary to s 94 of the Crimes Act 1900, following an incident in which approximately $45,000 was taken from the complainant's car. The complainant alleged that the appellant, with whom he had previously conducted iPhone resale transactions, lured him to a poorly lit cul-de-sac in Cecil Hills under the pretence of a large phone deal, grabbed a bag of cash from the back seat of the car, and fled into an adjacent park.

The jury was presented with two alternative counts: robbery (Count 1) and stealing from the person (Count 2). It acquitted the appellant of robbery but convicted him of stealing from the person. The trial judge sentenced the appellant to 18 months imprisonment, which was suspended.

More than 18 months after sentence had expired, the appellant applied for an extension of time to appeal. The Crown did not oppose the extension, which the Court granted. The appellant pressed two of his four original grounds of appeal.

  • Whether the jury's acquittal on robbery and simultaneous conviction for stealing from the person produced inconsistent verdicts that rendered the conviction unreasonable under s 6(1) of the Criminal Appeal Act 1912.
  • Whether the verdict on Count 2 was unreasonable or unsupported by the evidence, given the Crown's heavy reliance on the complainant's credibility and the alleged weaknesses in his testimony.

Decision

Inconsistent verdicts. The Court rejected the argument that the two verdicts were logically inconsistent. Robbery and stealing from the person under s 94 of the Crimes Act share the act of stealing but differ in a critical element: robbery requires that a threat or offer of violence coincide with the taking of the money. The Court found it open to the jury, on the evidence, to be satisfied that the appellant stole the money without being satisfied beyond reasonable doubt that the violence element was present at the precise moment of the taking. The acquittal on robbery was therefore explicable as the jury not being satisfied to the required standard about that specific ingredient, rather than as a irrational compromise.

Reasonableness of the verdict. The Court applied the test in M v The Queen (1994) 181 CLR 487, under which an appellate court makes an independent assessment of the evidence to determine whether it would be dangerous to allow the verdict to stand. The Court acknowledged that the complainant's cross-examination raised some credibility concerns, but found his evidence was corroborated in material respects by independent and objective evidence, particularly evidence relating to two SIM cards obtained from the appellant's Vodafone workplace that were used in the phone numbers connected to the transaction.

The appellant's own evidence denied any involvement whatsoever, but the Court found that account largely unbelievable and inconsistent with the circumstantial evidence assembled by the Crown. The Court noted the jury held primary responsibility for assessing witness credibility and had the benefit of seeing and hearing the witnesses. Garling J concluded he had no doubt about the appellant's guilt, and the verdict on Count 2 was not unreasonable.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Alternate verdicts of not guilty on robbery and guilty of stealing from the person are not necessarily inconsistent: robbery contains an additional element (coincidence of violence with the taking) that the jury may reject without undermining its finding on the theft itself.
  • Under the M v The Queen test, an appellate court conducting its own assessment of the evidence must ask whether it would be dangerous to allow the verdict to stand, not merely whether some evidence existed upon which a jury could convict.
  • Where a complainant's credibility is imperfect but their account is corroborated by strong independent circumstantial evidence, a conviction is not rendered unreasonable solely because cross-examination exposed weaknesses in the complainant's testimony.
  • The Court of Criminal Appeal confirmed that the jury retains primary responsibility for determining guilt or innocence, having seen and heard the witnesses, and appellate intervention requires more than disagreement with credibility findings.
  • An extension of time to appeal may be granted even after the sentence has fully expired, provided there is a proper basis and the Crown does not oppose.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 94 (robbery; stealing from the person)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 12 (suspended sentences)
- Criminal Appeal Act 1912 (NSW), s 6(1)

Cases
- M v The Queen [1994] HCA 63; (1994) 181 CLR 487
- MacKenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348
- Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316
- R v Foster (1995) 78 A Crim R 517
- R v Markuleski [2001] NSWCCA 290; (2001) 52 NSWLR 82
- SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400
- Still v R [2010] NSWCCA 131