Citation: Nadarasa v R; Satkunarasa v R; Sivapathasunram v R [2018] NSWCCA 29
Court: Court of Criminal Appeal
Date: 7 March 2018
Judges: Meagher JA; R A Hulme J; Beech-Jones J
Background
Five men were convicted after a jury trial in the District Court at Parramatta of wounding with intent to cause grievous bodily harm, arising from a series of assaults at Pendle Hill on the night of 20 April 2013. Each was sentenced on 24 February 2017 to three years' imprisonment with a non-parole period of two years. The jury also had the option of convicting on an alternative charge of using an offensive weapon with intent to commit an indictable offence (namely assault, whilst in company), but because that count was charged in the alternative, no verdict on it was required once the wounding conviction was returned.
Two of the five men successfully appealed their wounding convictions in earlier proceedings: Sivaraja v R; Sivathas v R [2017] NSWCCA 236. The same bench of the Court of Criminal Appeal upheld their ground that the jury's verdict was unreasonable because the jury ought to have had a reasonable doubt about whether the accused had the requisite intention. The Court substituted verdicts for the alternative offensive weapon offence and remitted those matters for resentencing.
The three remaining men, the appellants in this case, had filed Notices of Intention to Appeal but waited for the outcome of their co-accused's proceedings before filing their own appeals. They then sought the same relief.
Legal Issues
- Whether the jury verdicts finding the three appellants guilty of wounding with intent to cause grievous bodily harm were unreasonable, given that the same evidence underpinned convictions against all five accused
- Whether an extension of time should be granted to two of the three appellants who filed their appeal documents late
- What penalty, if any, should be imposed following substitution of the alternative verdict, given that the original sentences had already been backdated and had expired before they were formally imposed
Decision
The Court accepted that the evidence against all five accused at trial was materially identical and that no basis existed to distinguish the three appellants' cases from those of their two co-accused who had already succeeded on appeal. The Crown conceded the appeal, acknowledging that considerations of fairness and comity required the same outcome. The Court agreed the concession was appropriate and upheld the sole ground of appeal.
On the extension of time question, the Court granted extensions to two of the three appellants (Satkunarasa and Sivapathasunram), though it noted that waiting for co-accused proceedings to conclude is not necessarily an acceptable reason for delay. In the circumstances, the Court observed, the same bench was able to deal with the matter consistently and on the papers, so no practical difficulty arose.
On penalty, the Court took a different approach from that taken in the co-accused's cases. Unlike Sivaraja and Sivathas, whose original sentences had not been backdated and who were resentenced to good behaviour bonds after remittal, the three appellants' sentences had been backdated so that they expired before the date of imposition. There was no meaningful sentence left to impose, and remitting the matter to the District Court would have produced only a notional penalty. The Court therefore recorded convictions for the offensive weapon offence and disposed of the proceedings without imposing any additional penalty, using the power under s 10A(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW).
Orders Made
- Satkunarasa and Sivapathasunram: Extension of time to file Notices of Application for Leave to Appeal against conviction granted to 25 October 2017.
- All three appellants: Leave to appeal against conviction granted.
- All three appellants: Appeals allowed.
- All three appellants: Verdicts of guilty on Count 3 (wounding with intent) and sentences imposed on 24 February 2017 set aside; substituted verdicts of guilty entered for the offence under s 33B(2) of the Crimes Act 1900 (NSW) of using an offensive weapon with intent to commit an indictable offence (assault), whilst in company.
- All three appellants: Convictions recorded but no penalty imposed, pursuant to s 10A(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW).
Key Takeaways
- Where co-accused were tried on identical evidence and two of them have already succeeded on a ground that their verdict was unreasonable, the Court of Criminal Appeal will apply the same reasoning to the remaining accused absent any material difference in their cases.
- A conviction for wounding with intent to cause grievous bodily harm under s 33(1)(a) of the Crimes Act 1900 requires proof of a specific intention element; where the evidence does not sustain that intention beyond reasonable doubt, the verdict is unreasonable and cannot stand.
- Under s 7(2) of the Criminal Appeal Act 1912, the Court of Criminal Appeal may substitute a verdict for a lesser or alternative offence rather than simply quashing a conviction and ordering a retrial.
- Where a backdated custodial sentence has already expired before its formal date of imposition, the Court of Criminal Appeal may record a conviction for the substituted offence and impose no further penalty under s 10A(1) of the Crimes (Sentencing Procedure) Act 1999, rather than remitting the matter for resentencing.
- Delaying the filing of an appeal to await the outcome of a co-accused's appeal is a doubtful basis for an extension of time; the Court expressed a clear preference for all related appeal proceedings to be dealt with together, noting that different constitutions of the Court hearing related matters can create inconsistency.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 33(1)(a), 33B(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 10A(1)
- Criminal Appeal Act 1912 (NSW), s 7(2)
Cases:
- Sivaraja v R; Sivathas v R [2017] NSWCCA 236