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Court of Criminal Appeal 2 July 2020

Application of Ainsley Whitney

[2020] NSWCCA 146

Assault & violence
CRIME APPEALS MISAPPREHENSION ABOUT FACTS ESTABLISHED MATERIAL EFFECT NOT ESTABLISHED APPLICATION DISMISSED

Citation: Application of Ainsley Whitney [2020] NSWCCA 146
Court: NSW Court of Criminal Appeal
Date: 2 July 2020
Judges: Meagher JA, Harrison J, Button J

Background

The applicant, Ainsley Whitney, had previously appealed his sentence for reckless wounding in company, imposed by Colefax SC DCJ in the District Court on 30 January 2019. The offence arose from an agreed plan with a co-offender, Shane Patrick, to evict a woman from her home. Patrick armed himself with a steel chain and struck the victim in the head; Whitney was present as an accessory. Whitney received a head sentence of four years' imprisonment with a non-parole period of three years.

In the earlier appeal (Patrick v R; Whitney v R [2020] NSWCCA 63, decided 15 April 2020), the Court upheld Whitney's appeal only on the narrow ground of a calculation error in the commencement date of his sentence. Four other grounds, including planning, parity, objective seriousness, and manifest excess, were rejected.

Five days after that decision, Whitney filed an application under r 50C of the Criminal Appeal Rules seeking to have the April 2020 judgment set aside and the appeal reconsidered. The basis was that the leading judgment had mistakenly relied on text messages contained in a superseded statement of agreed facts, rather than the revised statement that had replaced it as the operative document before the sentencing judge.

  • Whether the Court's April 2020 judgment was affected by a factual error, namely reliance on text messages from a superseded version of the agreed facts rather than the operative revised statement of facts.
  • Whether that error had a material effect on the determination of the four rejected grounds of appeal (planning, parity, objective seriousness, and manifest excess), sufficient to warrant setting aside the judgment under r 50C of the Criminal Appeal Rules.

Decision

The Court accepted that a factual error had occurred. Button J's leading judgment had referenced text messages, including a message from Whitney referring to not wanting to "use hardware," that appeared in the superseded statement of agreed facts but not in the operative revised statement. The Court noted the error could not be attributed to either party, as both versions of the facts had been included in the appeal papers.

Proceeding with abundant caution, the Court assumed the error could have materially affected the determination of the four rejected grounds and reconsidered each of them with the effect of the error excised.

On the planning ground, the Court found that the correct facts themselves plainly supported a finding of planning. The revised statement recorded that the offenders had planned to attend the victim's home to "kick out" the victim, a phrase the Court considered connoted the potential use of force. The absence of the specific text messages did not undermine that conclusion.

On the parity and equal culpability ground, the Court reaffirmed that no factor compelled differentiation between Whitney and Patrick, whether legally or morally, even without any suggestion of a shared motive to protect an unlawful business. On objective seriousness and manifest excess, the Court was equally satisfied that those assessments remained well open at first instance. All four grounds were again rejected.

Orders Made

  • Leave to apply to set aside or vary the judgment given on 15 April 2020 was granted.
  • The application was dismissed.

Key Takeaways

  • Rule 50C of the Criminal Appeal Rules provides a mechanism to apply to set aside a judgment within 14 days of orders being entered, but the applicant must establish that any factual error had a material effect on the determination of the appeal.
  • In dismissing the application, the Court of Criminal Appeal confirmed that even where a factual error is accepted, setting aside the judgment is not warranted unless reconsidering the grounds without that error produces a different result.
  • A finding of "some degree of planning" for an offence of reckless wounding in company can rest on evidence in the agreed facts that offenders planned to attend a premises to forcibly evict the victim, without requiring reliance on the specific terms of text messages.
  • No error was established in the equal culpability finding simply because one offender was the accessory rather than the principal, particularly where no other distinguishing factor compelled a different moral assessment.
  • The Court's approach of proceeding on the assumption that the error could have materially affected the outcome, before reconsidering each ground independently, illustrates how r 50C applications are assessed even where the source of the error is not attributed to any party.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Rules (NSW), r 50C

Cases:
- Patrick v R; Whitney v R [2020] NSWCCA 63
- Alramadan v Director of Public Prosecutions (NSW) (No 2) [2008] NSWCCA 69
- Application of Malcolm Potier (No 3) [2015] NSWCCA 306
- Burrell v The Queen (2008) 238 CLR 218; [2008] HCA 34
- El Ali v R (No 2) [2019] NSWCCA 289
- Grierson v The King (1938) 60 CLR 431; [1938] HCA 45
- Kauwenberghs v R (Cth) [2009] NSWCCA 201