Citation: Balachandran v R [2020] NSWCCA 12
Court: NSW Court of Criminal Appeal
Date: 12 February 2020
Judges: White JA at [1]; Johnson J at [270]; Lonergan J at [275]
Background
The appellant was convicted in the District Court on 20 March 2017 of wounding with intent to cause grievous bodily harm and affray. He was sentenced to seven years' imprisonment with a non-parole period of four years and five months for the wounding offence, and 12 months concurrently for the affray.
The charges arose from events on the night of 11 July 2015 at a residential property in Wentworthville. The Crown alleged the appellant entered an adjoining property, struck one man on the head, and stabbed another man to the chest. The appellant denied both assaults and said he had tried to act as a peacemaker during a confrontation involving other individuals.
The central issue at trial was identification. Multiple witnesses identified the appellant as the attacker, including one victim who identified the appellant in the street approximately a month after the incident and selected him in a subsequent photo identification parade.
Legal Issues
- Whether the trial judge's summing-up failed to adequately balance the Crown and defence cases, causing a miscarriage of justice.
- Whether evidence from a co-accused who had since pleaded guilty constituted "fresh evidence" (evidence not available at trial) or merely "new evidence" (evidence that existed but was not adduced).
- Whether the jury's verdicts were unreasonable and could not be supported by the evidence, including when the new evidence on appeal was taken into account.
- Whether the appellant's trial representation was incompetent in a manner that caused a miscarriage of justice (Ground 2, ultimately not upheld).
Decision
Summing-up (Ground 1): The Court of Criminal Appeal found no miscarriage of justice in the trial judge's summing-up. A trial judge is entitled to remind the jury of evidence that bears on either the Crown or defence case, and may suggest to the jury that, if certain evidence is accepted, it would be highly supportive of other evidence. The Court considered the summing-up as a whole and was not persuaded that the trial judge undermined the defence case by raising matters of speculative possibility rather than addressing the actual evidence.
Fresh evidence versus new evidence (Ground 4): The appellant sought to rely on evidence from Sinniah, a co-accused who had pleaded guilty and initially agreed to a statement of facts unfavourable to the appellant before later recanting. The Court held this evidence was "new evidence" rather than "fresh evidence." The distinction is significant: fresh evidence is evidence that was not actually or constructively available at the time of trial; new evidence is evidence that existed but was not called. Because the appellant's legal team made a deliberate forensic decision not to call Sinniah or ask the Crown to do so, the evidence did not qualify as fresh. All three judges found Sinniah's evidence in any event to be unreliable, noting his heavy intoxication on the night in question and the shifting nature of his account under cross-examination.
Unreasonable verdict (Ground 3): The Court considered all evidence led at trial, together with the new evidence called on appeal, and concluded the verdicts were not unreasonable. The relevant discrepancies in the identification evidence had been put to the jury and were capable of resolution. The new evidence was of low probative value and raised significant reliability concerns. All three judges stated they entertained no reasonable doubt as to the appellant's guilt on either charge.
Incompetent representation (Ground 2): This ground was not sustained. The Court treated various decisions made by trial counsel, including choices about which parts of witness records of interview to tender, as matters of forensic judgment rather than incompetence causing a miscarriage of justice.
Orders Made
• Leave to appeal granted
• Appeal dismissed
Key Takeaways
- The Court of Criminal Appeal confirmed that a trial judge's summing-up must be assessed as a whole, and that reminding a jury of evidence that bears on either party's case does not of itself constitute an inadequate or unbalanced direction.
- A deliberate forensic decision by trial counsel not to call a witness will preclude that witness's subsequent evidence from qualifying as "fresh evidence" on appeal, even if the accused was unaware of a statement made by that witness that was unfavourable.
- "Fresh evidence" is evidence not actually or constructively available at trial; "new evidence" is evidence that existed but was not adduced. The distinction affects what threshold the appellate court applies when assessing whether a miscarriage of justice occurred.
- Where new evidence called on appeal is found to be of low probative value and raises significant reliability concerns, it will not, on its own, render an otherwise supported verdict unreasonable.
- In dismissing the appeal, all three judges independently stated they held no reasonable doubt as to the appellant's guilt, having considered both the trial evidence and the new evidence adduced before the Court of Criminal Appeal.
Legislation and Cases Referenced
Legislation:
- Criminal Appeal Act 1912 (NSW), s 6
- Evidence Act 1995 (NSW), s 137
- Crimes Act 1958 (Vic), s 568
Cases:
- Ratten v The Queen (1974) 131 CLR 510
- M v The Queen [1994] HCA 63; (1994) 181 CLR 487
- Libke v The Queen (2007) 230 CLR 559
- SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
- McKell v The Queen (2019) 264 CLR 307; [2019] HCA 5
- The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
- R v Abou-Chabake [2004] NSWCCA 356; (2004) 149 A Crim R 417
- Mulholland v R [2018] NSWCCA 299
- R v RTB [2002] NSWCCA 104
- Smith v New South Wales Bar Association (1992) 176 CLR 256
- Whitlam v Australian Security and Investments Commission (2003) 57 NSWLR 559; [2003] NSWCA 183