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Court of Criminal Appeal 7 October 2016

R v Bragias

[2016] NSWCCA 219

Assault & violenceTheft & property
CRIMINAL LAW CONVICTION APPEAL ASSESSMENT OF COHERENCE OF HIS ACCOUNT

Citation: Bragias v R [2016] NSWCCA 219
Court: NSW Court of Criminal Appeal
Date: 7 October 2016
Judge(s): McCallum J (primary judgment), R A Hulme J, Schmidt J

Background

The appellant was tried jointly with a co-accused on a single indictment containing one count of robbery in company with wounding (s 98, Crimes Act 1900 (NSW)), with an alternative count of taking a motor vehicle with assault (s 154C(2)). The trial ran for 19 days before a District Court judge and jury. Both accused were acquitted of the primary count but convicted of the alternative offence.

The facts underlying the conviction centred on a dispute over a debt. The complainant had agreed to repay the appellant his share of a hotel bill but later decided he should not have to pay, partly because car parts he had stored at the appellant's premises had gone missing. The parties met at Taren Point in February 2013 to discuss the outstanding debt. According to the Crown case, the co-accused punched the complainant and threatened him with a knife, after which the appellant drove away in the complainant's car.

Following conviction, the appellant was sentenced to an aggregate term of four years and two months imprisonment, with a non-parole period of two years and nine months. He had already been released to parole before the appeal was heard. The appeal was confined to a single ground: that the jury's verdict was unreasonable, or could not be supported, having regard to the evidence.

  • Whether the jury's verdict of guilty on the alternative count was unreasonable, or could not be supported, having regard to the evidence, under s 6(1) of the Criminal Appeal Act 1912 (NSW)
  • How the appellate court should apply the test from M v The Queen (1994) 181 CLR 487, including the proper weight to be given to the jury's advantage in seeing and hearing witnesses
  • Whether the complainant's admitted lies to police fatally undermined the reliability of his account such that no jury acting reasonably could have accepted it

Decision

McCallum J conducted a detailed independent assessment of the evidence and concluded that no doubt as to the appellant's guilt had been excited. Her Honour found the verdict was well open on the evidence and dismissed the appeal.

A notable feature of the evidence was that the complainant admitted lying to police, and other witnesses also gave accounts that withheld assistance from the prosecution. McCallum J observed, however, that the pattern of lying had a "coherent quality": each witness declined to give evidence against the accused. Rather than undermining the Crown case, this consistency in the nature of the lies was capable of reinforcing it.

McCallum J also devoted considerable attention to the proper application of the M v The Queen test. Her Honour cautioned against treating the observation in M that "in most cases" a doubt felt by an appellate court will be one a jury ought also to have experienced as a standalone legal proposition. To elevate that explanatory observation to a discrete rule of law, her Honour said, would revert to the very debate the High Court had sought to quell in M. The critical point remains that an appellate court must give full weight to the jury's advantage in seeing and hearing witnesses, and it is only where that advantage cannot resolve a doubt that a miscarriage of justice will be found.

Hulme J and Schmidt J each agreed that, on the evidence discussed by McCallum J, it was well open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that an appellate court undertaking an M v The Queen assessment must make an independent evaluation of both the sufficiency and quality of the evidence, while giving full weight to the jury's advantage in observing witnesses firsthand.
  • The statement in M v The Queen that "in most cases" a doubt experienced by an appellate court will be one a jury ought also to have experienced is an explanatory observation, not a discrete legal principle. Treating it otherwise risks distorting the proper appellate task.
  • A complainant's admitted lies to police do not necessarily render a guilty verdict unreasonable. Where the lies disclosed a coherent pattern, such as witnesses uniformly declining to implicate the accused, that pattern may itself be consistent with, and even supportive of, the Crown case.
  • Where a jury's advantage in seeing and hearing evidence is capable of resolving any doubt experienced by the Court of Criminal Appeal, no miscarriage of justice will be established.
  • Sufficient evidence existed in this case to support the conviction for taking a motor vehicle with assault, notwithstanding contested credibility issues and the complainant's conceded untruthfulness in earlier accounts to police.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 98, 154C(2)
- Criminal Appeal Act 1912 (NSW), s 6(1)
- Evidence Act 1995 (NSW), s 60

Cases
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- SKA v The Queen (2011) 243 CLR 400; [2011] HCA 1
- Morris v The Queen (1987) 163 CLR 454; [1987] HCA 50
- Rattan v The Queen (1974) 131 CLR 510; [1974] HCA 35
- Whitehorn v The Queen (1983) 152 CLR 657; [1983] HCA 42
- Chamberlain v The Queen (No 2) (1984) 153 CLR 521; [1984] HCA 7