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Court of Criminal Appeal 3 March 2017

JH v R

[2017] NSWCCA 22

Assault & violenceHomicide
CRIMINAL LAW MANSLAUGHTER UNLAWFUL AND DANGEROUS ACT APPEAL AGAINST CONVICTION WHETHER VERDICT WAS UNREASONABLE RELIABILITY OF IDENTIFICATION EVIDENCE

Citation: JH v R [2017] NSWCCA 22
Court: NSW Court of Criminal Appeal
Date: 3 March 2017
Judges: Hoeben CJ at CL, Davies J, Bellew J

Background

The applicant, JH, was a member of a group known as the "Wakeley Boys" who attended a Halloween party in Bossley Park on 30 October 2010. The group had come to confront a rival group, the "Campbelltown Boys." During the evening, the victim was lured toward the group, punched, and then set upon by multiple attackers who punched and kicked him. He died in hospital on 5 November 2010.

The Crown's case against JH rested largely on circumstantial evidence: his presence with the group before and after the assault, telephone records and intercepted conversations, and an alleged motive. That motive was the Crown's assertion that JH regarded the victim as a "snitch" because the victim had previously given a statement to police and testified in court about a robbery and assault in February 2010, in which JH was allegedly involved.

JH was tried jointly with three co-accused. The jury acquitted him of murder but convicted him of manslaughter by unlawful and dangerous act. He was sentenced to 10 years' imprisonment with a non-parole period of seven years. He sought leave to appeal against both conviction and sentence.

  • Whether the verdict of manslaughter was unreasonable or unsupported by the evidence, including whether identification evidence was too unreliable and whether there was sufficient evidence of motive
  • Whether a miscarriage of justice occurred due to the incompetence of trial counsel, specifically in failing to: investigate and lead evidence of an alleged second attack on the victim not involving JH; lead evidence detracting from the Crown's case on motive; and properly advise JH of his right to give evidence
  • Whether remarks made by the Crown prosecutor in closing address to the jury caused a miscarriage of justice
  • Whether leave to appeal against sentence should be granted on the ground that the sentence was manifestly excessive
  • Whether new evidence sought to be adduced on the appeal satisfied the requirements of fresh evidence of sufficient cogency

Decision

Unreasonable verdict and identification. The Court noted that JH's submissions did not challenge the entirety of the evidence but focused on the alleged weakness of the identification evidence when combined with the motive question. The Crown's case was primarily circumstantial, drawing on observations of JH with the group before and after the assault, telephone records, and recorded conversations. The Court found the jury was entitled to accept that evidence and the verdict was not unreasonable.

Incompetent legal representation. JH sought to introduce new evidence on appeal, including evidence about a second attack on the victim and evidence said to undermine the Crown's motive case. The Court applied the established test: whether the new evidence was fresh (not available at trial with reasonable diligence) and whether it was of sufficient cogency to show innocence or raise a reasonable doubt. The Court found these thresholds were not met. On the question of whether JH was properly advised about his right to give evidence, the Court was not satisfied that any failure in this regard caused a miscarriage of justice.

Prosecutor's address. The Court considered the specific remarks made by the Crown prosecutor in closing address. It did not find that those remarks gave rise to a miscarriage of justice in the circumstances of the trial.

Sentence. The sentencing judge had found that JH and others jointly decided to launch the group attack on the victim and encouraged others to do so, establishing a high level of moral culpability. The Court accepted that the sentencing judge expressly declined to find JH had "orchestrated" the attack as the sole instigator. JH's youth and other subjective features were taken into account, but the Court found they did not render the sentence manifestly excessive. The finding that JH's prospects for rehabilitation were only moderate was supported by the evidence, including a Juvenile Justice Report noting his failure to recognise his behaviour as problematic.

Orders Made

  • Conviction appeal: leave to appeal granted; appeal dismissed
  • Sentence appeal: leave to appeal granted; appeal dismissed

Key Takeaways

  • A largely circumstantial Crown case, built on pre- and post-offence association with a group, telephone records, and recorded admissions, can be sufficient to support a manslaughter conviction where direct identification evidence is limited.
  • To succeed in a miscarriage of justice claim based on trial counsel's incompetence, an applicant must establish not only that counsel made an error but that the error caused an actual miscarriage of justice; it is insufficient to identify steps counsel did not take without demonstrating those steps would have materially altered the outcome.
  • New evidence tendered for the first time on appeal must satisfy a two-stage test: the evidence must be fresh (genuinely unavailable at trial with reasonable diligence) and it must be cogent enough to show innocence or raise a reasonable doubt.
  • In dismissing the sentence appeal, the Court confirmed that an offender's failure to acknowledge guilt after conviction does not automatically preclude a favourable finding on rehabilitation prospects, but where the broader evidence supports a finding of poor prospects, a sentencing court may properly make that finding.
  • A sentencing court's assessment of an offender's role in a joint criminal enterprise will be closely examined on appeal; where a judge expressly disavows a finding that the offender was the sole instigator while still finding high moral culpability, that reasoning is open to stand if supported by the evidence.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW)

Cases
- Alseedi v R [2009] NSWCCA 185
- Dinsdale v R (2000) 202 CLR 321; [2000] HCA 54
- Field v R [2015] NSWCCA 332
- Kees Langelaar v R [2016] NSWCCA 143
- Lane v R [2013] NSWCCA 317; 241 A Crim R 321
- MG v R; AE v R [2016] NSWCCA 228
- Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614
- R v Abou-Chabake [2004] NSWCCA 356; (2004) 149 A Crim R 417
- R v Birks (1990) 19 NSWLR 677
- R v Gordon (1994) 71 A Crim R 459
- R v Hillier (2007) 228 CLR 618; [2007] HCA 13
- R v LLM [2005] NSWCCA 302
- The Queen v Baden-Clay [2016] HCA 35; (2016) 90 ALJR 1013
- TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46
- Wood v R [2012] NSWCCA 21; (2012) 84 NSWLR 581