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Court of Criminal Appeal 16 February 2018

Haines v R

[2018] NSWCCA 11

Assault & violence
CRIMINAL LAW APPEAL CONVICTION

Citation: Haines v R [2018] NSWCCA 11
Court: NSW Court of Criminal Appeal
Date: 16 February 2018
Judges: Bathurst CJ; R A Hulme J; Wilson J

Background

The appellant was convicted after a judge-alone trial of causing grievous bodily harm with reckless indifference to actual bodily harm, contrary to s 35(2) of the Crimes Act 1900 (NSW). The Crown alleged she struck the victim over the head with a log and that he was kicked while on the ground, causing a serious brain injury that left him in a coma for more than a week.

The Crown relied primarily on two witnesses: a neighbour (Mr Danta), who observed the incident from across the road, and the victim himself. The victim's evidence was significantly affected by memory difficulties. He acknowledged that his back was turned when he was struck, that police had prompted his recollection by suggesting the appellant's name, and that his dreams had influenced his memory of events.

At trial, the defence advanced the hypothesis that the appellant's boyfriend, Mr Campbell, was the person who struck the victim. The trial judge rejected that hypothesis, finding it was not reasonably open on the evidence, and entered a verdict of guilty. The appellant appealed against that conviction.

  • Whether the trial judge erred by failing to give reasons for refusing the defence application to exclude the victim's evidence
  • Whether the trial judge should have excluded the victim's evidence altogether
  • Whether the guilty verdict was unreasonable or could not be supported by the evidence

Decision

The Crown conceded the first ground, acknowledging that the trial judge was required to give reasons for admitting the victim's evidence over objection. The Crown nonetheless argued that the proviso in s 6(1) of the Criminal Appeal Act 1912 (NSW) should apply because no substantial miscarriage of justice had resulted from that failure.

On the second ground, the Crown maintained that the trial judge had correctly admitted the victim's evidence, and that the alleged weaknesses in that evidence did not demonstrate the kind of error identified in House v The King (1936) 55 CLR 499 required to disturb a discretionary ruling.

The decisive issue was the third ground. The Court of Criminal Appeal identified a critical error in the trial judge's reasoning. The trial judge concluded that both the victim and Mr Danta had denied Mr Campbell's presence at the scene. That conclusion was factually incorrect. The victim had not denied Mr Campbell was present; he had in fact affirmed that Mr Campbell was there and stated that Mr Campbell had kicked him in the mouth. Mr Danta's evidence was that he could not recall seeing a male other than the victim, not that he had affirmatively excluded such a presence. He conceded in cross-examination that a male person could have been outside his line of sight.

Because the trial judge's rejection of the alternative hypothesis depended directly on this misreading of the evidence, the entire basis for the finding of guilt beyond reasonable doubt was undermined. The Crown accepted at the hearing that the Court could not be satisfied that no substantial miscarriage of justice had occurred. Given that the evidence was incapable of supporting a guilty verdict, the Court held it was not appropriate to order a retrial, and instead entered a verdict of acquittal.

Orders Made

  • Leave to appeal granted
  • Appeal against conviction allowed
  • Conviction quashed
  • Verdict of acquittal entered
  • Appellant to be released forthwith

Key Takeaways

  • A trial judge's mischaracterisation of key evidence, where that mischaracterisation is inextricably linked to the rejection of an alternative hypothesis, can render a guilty verdict unreasonable and incapable of support under s 6(1) of the Criminal Appeal Act 1912 (NSW).
  • Where the evidence is incapable of supporting a finding of guilt beyond reasonable doubt, the Court of Criminal Appeal will enter an acquittal rather than order a retrial.
  • The Crown's concession that evidence cannot support a conviction does not automatically dispose of the appeal; the Court still examines the reasons and the nature of the error to determine the appropriate remedy.
  • Under s 6(1) of the Criminal Appeal Act 1912, the proviso permitting dismissal of an appeal despite an established error applies only where the court is satisfied that no substantial miscarriage of justice has actually occurred. Here, that threshold could not be met.
  • A witness's failure to recall seeing a person is materially different from a positive denial of that person's presence, and conflating the two can constitute reversible error in a judge-alone verdict.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 35(2)
- Criminal Appeal Act 1912 (NSW), ss 5(1)(b), 6(1)

Cases
- Bell v R [2017] NSWCCA 207
- Dickson v R [2017] NSWCCA 78
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 2
- House v The King (1936) 55 CLR 499; [1936] HCA 40