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Court of Criminal Appeal 1 November 2019

Bloodsworth v R

[2019] NSWCCA 260

Homicide
CRIME CONVICTION APPEAL WHETHER VERDICT UNREASONABLE VERDICT OF ACQUITTAL ENTERED

Citation: Bloodsworth v R [2019] NSWCCA 260
Court: NSW Court of Criminal Appeal
Date: 1 November 2019
Judges: Bathurst CJ, Bell P, Harrison J

Background

The appellant was tried jointly with her partner before Adamson J and a jury on a charge of murdering a man at his Housing Commission unit in Hebersham in August 2015. The deceased was the co-accused's half-brother, and both the appellant and her partner had been living in the unit at the relevant time. The deceased died after being gagged, hog-tied, struck with a heavy bowl, and suffering other injuries. He survived for approximately two hours after the fatal head injuries were inflicted.

The co-accused participated in a recorded police interview (ERISP) and admitted his involvement, giving a version that also implicated the appellant. The appellant made no admissions, did not participate in an ERISP, and neither she nor the co-accused gave evidence at trial. No DNA evidence, listening device material, or intercepted telephone communications linked the appellant to the offence. The jury was directed it could not use anything the co-accused said in his recorded interview against the appellant.

The jury acquitted both accused of murder but convicted them each of manslaughter on the basis of an unlawful and dangerous act committed as part of a joint criminal enterprise. The appellant was sentenced to 11 years' imprisonment with a non-parole period of seven years and six months. She appealed against both conviction and sentence. Before trial, the appellant had offered to plead guilty to accessory after the fact and concealing a serious indictable offence; that offer was not accepted by the Crown.

  • Whether the manslaughter verdict was unreasonable and could not be supported having regard to the nature and quality of the evidence
  • Whether mere presence at the scene during the assault, combined with post-offence conduct, was capable of proving beyond reasonable doubt that the appellant was a party to a joint criminal enterprise to commit the unlawful and dangerous act

Decision

Harrison J (with whom Bathurst CJ and Bell P agreed) held that the verdict was unreasonable. The Crown's case rested substantially on the proposition that the appellant was present in the unit at some point during the assault and had engaged in post-offence conduct, including coordinating a fabricated story with the co-accused. However, the evidence did not establish when during the assault she was present, and her presence at some point in the evening was insufficient by itself to establish an agreement to participate in the criminal enterprise.

The post-offence conduct relied upon by the Crown, including the appellant's conversations with others and a recording said to have been made on her phone, did not reliably support the inference of a prior agreement. On the contrary, Harrison J noted that the recording evidence, as recounted by a witness, was arguably consistent with the co-accused coercing or overawing the appellant, rather than with her being a willing participant in any agreement. The appellant's own statements included a reference to the co-accused having threatened her and forced her to assist after the event.

Harrison J also noted that the absence of contested evidence between witnesses reduced the significance of any advantage the jury held in assessing credibility. Because neither accused gave evidence, there was no competing oral testimony for a jury to weigh. In those circumstances, the court was in a position to evaluate the evidence substantially as the jury had, and Harrison J formed the view that the evidence was not capable of proving the appellant's guilt. The doubt that arose on that evidence was one the jury ought also to have experienced.

The Court therefore concluded that the conviction could not stand, and a verdict of acquittal was entered. The sentence appeal grounds were not examined, having been rendered unnecessary by the conviction appeal outcome.

Orders Made

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

Key Takeaways

  • A conviction for manslaughter based on joint criminal enterprise requires proof of an agreement to commit the relevant unlawful and dangerous act; presence at the scene, without more, does not establish such an agreement.
  • Post-offence conduct, including the coordination of a false story and assisting a co-offender after the event, may be consistent with conduct as an accessory after the fact rather than as a party to the original criminal enterprise.
  • Where evidence said to demonstrate complicity is equally or more consistent with a defendant having been threatened or coerced by a co-offender, it cannot sustain a verdict of participation in a joint criminal enterprise beyond reasonable doubt.
  • The Court of Criminal Appeal confirmed that where neither accused gave evidence at trial, the usual advantage a jury holds in assessing witness credibility is substantially reduced, allowing the appellate court to evaluate the evidentiary sufficiency with greater confidence.
  • In dismissing the conviction, the Court did not need to examine sentence appeal grounds, illustrating that a successful unreasonable verdict ground renders subsidiary sentence grounds moot.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5(1)

Cases:
- AZ v R [2018] NSWCCA 294
- Stanford v R [2018] NSWCCA 249