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Court of Criminal Appeal 22 February 2016

Elwood v R

[2016] NSWCCA 18

Assault & violenceTheft & property
CRIMINAL CONVICTION ACCUSED NO MISCARRIAGE OF JUSTICE

Citation: Elwood v R [2016] NSWCCA 18
Court: NSW Court of Criminal Appeal
Date: 22 February 2016
Judges: Meagher JA at [1]; McCallum J at [58]; Button J at [60]

Background

In May 2011, four men travelled together to a home in Wagga Wagga intending to rob a small-scale marijuana dealer. The resident was assaulted at his front door, and events rapidly escalated: he was fatally stabbed, and his teenage son was also stabbed during the confrontation. The appellant was one of the four men present that evening.

At trial in 2014, the jury convicted the appellant of armed assault with intent to rob (as a participant in a joint criminal enterprise), while acquitting his co-accused, Douglas Dennis, of the same charge. Both the appellant and Dennis were convicted of manslaughter rather than murder, and both were acquitted of wounding with intent. The appellant did not dispute that a robbery was planned; the central factual question was whether he knew, before arriving at the house, that one of the group was carrying a machete.

The appellant sought leave to appeal his conviction for armed assault with intent to rob, arguing the verdict was unreasonable on the evidence and that it could not stand alongside the jury's acquittal of Dennis on the same count.

  • Whether the verdict of guilty on the armed assault with intent to rob charge was unreasonable or not supported by the evidence, particularly in light of contested evidence about the appellant's prior knowledge of the machete.
  • Whether the jury's verdict convicting the appellant on that count, while acquitting Dennis on the same count, was so inconsistent as to constitute a miscarriage of justice warranting intervention.

Decision

On the unreasonable verdict ground: The court found the guilty verdict was open on the evidence. The Crown's case rested substantially on the appellant's own electronically recorded police interview (ERISP), in which he described seeing Ethan McKellar produce the machete at the front door of the house. The court assessed this as an admission that the appellant knew of the weapon by at least that point, satisfying the requirement for the armed assault with intent to rob charge. The court also noted other circumstantial indicators, including the appellant's position in the vehicle beside Ethan McKellar on the drive to the house, which supported an inference that he was aware of the weapon before arrival.

On the inconsistent verdicts ground: The court applied the test from MacKenzie v The Queen: the question is whether the verdicts are so inconsistent that no rational explanation can account for them. It found there were rational bases for the different outcomes as between the appellant and Dennis. Dennis was the driver, seated separately from Ethan McKellar, and had not admitted to seeing the machete produced before the group arrived at the house. The appellant, by contrast, was seated next to McKellar and had made admissions in his ERISP about the machete's production. These factual differences provided a rational basis for the jury to treat the two accused differently.

McCallum J, agreeing with Meagher JA, added that the appellant's ERISP, viewed as a whole, was not wholly convincing on the question of when he first became aware of the weapon. Her Honour was not persuaded that the jury was obliged to entertain a reasonable doubt on that issue. Button J agreed after conducting his own independent assessment of the evidence.

Orders Made

  • Leave to appeal against the conviction on count 3 (armed assault with intent to rob) was granted.
  • The appeal was dismissed.

Key Takeaways

  • A guilty verdict on a joint criminal enterprise charge can stand even where a co-accused is acquitted on the same count, provided there are rational factual differences between the two cases that could account for the different verdicts.
  • Factual differences between co-accused, such as seating position in a vehicle and the presence or absence of admissions in a police interview, can constitute a rational basis sufficient to defeat an inconsistent verdicts argument.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the relevant question is not whether the verdicts are difficult to reconcile, but whether any inconsistency necessarily indicates the jury acted unreasonably in returning the guilty verdict.
  • Sufficient evidence existed to support the conviction where the appellant's own ERISP contained admissions consistent with knowledge of the weapon, even if those admissions fell short of explicit acknowledgment of pre-arrival knowledge.
  • Under the unreasonable verdict ground in s 5(1)(b) of the Criminal Appeal Act 1912 (NSW), the court conducts its own assessment of the evidence but asks whether it was open to the jury to be satisfied beyond reasonable doubt, not whether the appellate court would have reached the same conclusion.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5(1)(b)
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A

Cases:
- MacKenzie v The Queen [1996] HCA 35; 190 CLR 348
- M v The Queen [1994] HCA 63; 181 CLR 487
- SKA v The Queen [2011] HCA 13; 243 CLR 400
- Libke v The Queen [2007] HCA 30; 230 CLR 559
- Hawi v R [2014] NSWCCA 83
- R v Kirkman (1987) 44 SASR 591