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Court of Criminal Appeal 12 June 2019

Pashley v R

[2019] NSWCCA 119

Assault & violenceTheft & propertyPublic order & justice offences
CRIME APPEALS APPEAL AGAINST CONVICTION APPEALS APPEAL AGAINST CONVICTION NO DEFICIENCY IDENTIFIED CRIME

Citation: Pashley v R [2019] NSWCCA 119
Court: Court of Criminal Appeal, NSW
Date: 12 June 2019
Judges: Simpson AJA, Walton J, Adamson J

Background

The appellant was convicted by a jury in the District Court of robbery in company, kidnapping with actual bodily harm, and taking and driving a conveyance, following a joint criminal enterprise with a co-offender. The offences arose from a pre-planned robbery at a hotel in Thredbo in the early hours of 12 March 2014. The victim, a night auditor, was threatened with a knife and claw hammer, bound with duct tape, locked in the back of a stolen van, and driven from Thredbo toward Jindabyne before managing to escape by rolling out of the moving vehicle, sustaining injuries.

The Crown case placed the appellant as the driver of a Ford Falcon that followed the stolen van during the kidnapping, with both vehicles captured on Roads and Maritime Services cameras. The appellant admitted travelling to the region with the co-offender but disputed his participation in the offences at the hotel.

After conviction, the appellant was sentenced to an aggregate term of 13 years' imprisonment with a non-parole period of 8 years. He appealed against both conviction and sentence.

  • Whether the trial judge was obliged to give a Shepherd direction requiring the jury to be satisfied beyond reasonable doubt of an intermediate fact (the identification of the Ford on CCTV footage) before relying on it to reach the ultimate verdict.
  • Whether the jury directions on circumstantial evidence were otherwise deficient or inconsistent with the Bench Book.
  • Whether the verdicts were unreasonable or could not be supported having regard to the evidence.
  • Whether the sentence gave rise to a justified grievance of parity compared with the sentence imposed on the co-offender.

Decision

Circumstantial evidence directions and the Shepherd direction: The appellant argued that the identification of the Ford on CCTV footage at the BP Service Station in Jindabyne was an indispensable intermediate step in the Crown case, requiring the trial judge to direct the jury under the principle in Shepherd v The Queen (1990) 170 CLR 573. The Court rejected this. The identification of the Ford at that location was not an essential link in a chain of reasoning without which the Crown case could not succeed. The Crown case rested on a broader body of largely undisputed evidence about the appellant's movements, his association with the co-offender, and the events of that night.

Other directions on circumstantial evidence: The appellant also argued that the trial judge's directions did not comply with the Bench Book and were therefore deficient. The Court found no deficiency in the directions as given. No error was identified that warranted intervention.

Unreasonable verdict: All three members of the Court were satisfied that the guilty verdicts were reasonably open to the jury on the whole of the evidence. The Crown case was substantially built on undisputed facts, including the appellant's admitted journey to the area, the changing of number plates before departure, and evidence placing both the Ford and the van at key locations at relevant times.

Parity and sentence: The appellant contended that his sentence was disproportionately high compared with that of the co-offender. The Court found that any difference in the aggregate sentences reflected the appellant's better subjective circumstances rather than any difference in their respective roles, and that no justifiable sense of grievance arose from the disparity. However, because the co-offender's own appeal had been heard but not yet determined, the Court declined to grant leave to appeal against sentence. Refusing leave preserved the appellant's ability to revisit the parity grounds if the co-offender's sentence were subsequently reduced on appeal.

Orders Made

  • Leave granted to raise ground 3 in the appeal against conviction.
  • Appeal against conviction dismissed.
  • Leave to appeal against sentence refused.

Key Takeaways

  • A Shepherd direction, requiring the jury to be satisfied of an intermediate fact beyond reasonable doubt before using it as a step toward the verdict, is only obligatory where that intermediate fact is an indispensable link in the chain of circumstantial reasoning. Where the evidence against an accused is based on a convergence of circumstances rather than a single essential chain, the direction is not required.
  • No error in a trial judge's directions on circumstantial evidence will warrant appellate intervention unless an actual deficiency is identified. Departure from the Bench Book does not of itself constitute error if the substance of the directions is adequate.
  • In dismissing the unreasonable verdict ground, the Court of Criminal Appeal applied the established standard: a verdict is not unreasonable if it was one that a jury, properly instructed, could rationally reach on the whole of the evidence.
  • Where a co-offender's appeal against sentence has been heard but not yet decided, it may be appropriate to refuse leave to appeal against sentence (rather than dismiss the appeal after granting leave), so as to preserve the appellant's ability to revisit parity grounds should the co-offender's sentence be reduced.
  • Differences in subjective circumstances between co-offenders can legitimately justify differences in sentence even where their objective roles in the offending were substantially equivalent.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 86, 97, 154A
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44

Cases:
- Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
- GAS v The Queen; SJK v The Queen (2004) 217 CLR 198; [2004] HCA 22
- Mulato v R [2006] NSWCCA 282
- Burrell v The Queen [2009] NSWCCA 163; (2009) 196 A Crim R 199
- SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
- The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
- Re Director of Public Prosecutions (DPP) Reference No 1 of 2017 [2019] HCA 9; (2019) 364 ALR 407
- R v Prasad (1979) 23 SASR 161