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Court of Criminal Appeal 6 May 2020

Ewan v R

[2020] NSWCCA 85

Public order & justice offences
CRIME NO INCONSISTENCY EDWARDS DIRECTIONS PROPERLY GIVEN R 4 CRIMINAL APPEAL RULES CRIME UNREASONABLE VERDICT AGGREGATE SENTENCE QUASHED

Citation: Ewan v R [2020] NSWCCA 85
Court: NSW Court of Criminal Appeal
Date: 6 May 2020
Judges: Macfarlan JA; R A Hulme J; Button J

Background

The applicant was convicted by a District Court jury of being an accessory after the fact to his son's offence of recklessly causing grievous bodily harm. The underlying incident occurred on 15 July 2017 in Kogarah, where the son assaulted a man on Rocky Point Road, causing him serious injuries. The applicant was alleged to have assisted his son before, during, and after the assault.

The indictment charged the applicant with receiving, harbouring, maintaining, and assisting the principal offender, knowing that offender had committed the relevant crime. At trial, the Crown relied on three distinct acts of alleged assistance: directing the son to commit the assault, shouting words to warn the son to flee, and driving the son away from the scene afterwards.

The trial judge directed the jury that it was sufficient for the Crown to prove any one of those three acts of assistance. The applicant sought leave to appeal on three grounds: that the jury should have been directed to reach a unanimous verdict on which specific act of assistance was proved; that evidence of his conduct was wrongly used to infer consciousness of guilt; and that the verdict was unreasonable.

  • Whether the trial judge erred by failing to give a specific unanimity direction, requiring the jury to agree on which particular act of assistance the applicant provided.
  • Whether the trial judge erred by permitting the same conduct to be used both as evidence of consciousness of guilt and as evidence constituting an element of the accessory offence.
  • Whether the verdict was unreasonable and could not be supported by the evidence.

Decision

Ground 1: Unanimity direction (upheld)

The Court of Criminal Appeal held that a specific unanimity direction was required in the circumstances. The trial judge had told the jury it only needed to be satisfied of one of the three alleged acts of assistance, without requiring unanimity as to which act. Because different jurors may have found guilt on the basis of different acts, there was a real risk the verdict did not represent genuine unanimity. This constituted a substantial miscarriage of justice, and the conviction was quashed.

Ground 2: Consciousness of guilt and the Edwards direction (rejected)

The applicant argued it was impermissible for the Crown to rely on the same alleged lies both as acts of assistance constituting an element of the offence and as evidence of consciousness of guilt. The Court rejected this, noting that a person can do one thing for two or more reasons simultaneously. The two uses of the evidence were not logically inconsistent. Button J added that while it was unorthodox for an Edwards direction (a direction warning the jury about the proper use of lies as evidence of a guilty mind) to be given when the Crown had not ultimately pressed that reasoning in closing address, defence counsel had requested the direction at an earlier stage and raised no objection to the summing-up as given.

Ground 3: Unreasonable verdict (rejected)

The Court found the verdict was not unreasonable. On the evidence before the jury, including eyewitness testimony about the assault, CCTV footage, and the evidence of a witness who heard a voice call out words consistent with warning the son to run, it was open to the jury to convict.

New trial and resentencing

Because the applicant failed on Ground 3, an acquittal was not available. The Court ordered a new trial on the accessory charge. The existing aggregate sentence, which had covered both the accessory conviction and three related guilty plea offences, was quashed. The Court resentenced the applicant on the guilty plea offences alone, substituting a six-month aggregate term of imprisonment served by way of an Intensive Correction Order, effectively backdated to commence from the original sentencing date of 12 April 2019.

Orders Made

  • Leave to appeal granted on Ground 1; conviction for accessory after the fact quashed.
  • New trial ordered on the accessory after the fact charge.
  • Aggregate sentence imposed in the District Court on 12 April 2019 quashed.
  • In respect of convictions on sequences 3, 4, and 6 (the guilty plea offences), aggregate imprisonment of 6 months imposed by way of an Intensive Correction Order, backdated to commence 12 April 2019 and expiring 11 October 2019.
  • Indicative sentence of 6 months imprisonment specified for each of those offences.
  • Standard Intensive Correction Order conditions imposed, including no further offending and supervision by a Community Corrections Officer.
  • Sentence on sequence 1 (intimidation offence) unaffected.
  • Matter listed for mention in the District Court on 22 May 2020.

Key Takeaways

  • Where a single charge of accessory after the fact relies on multiple distinct acts of assistance, and the trial judge directs the jury that proof of any one act suffices, a specific unanimity direction is required to ensure all jurors agree on the same act. Failure to give that direction can constitute a substantial miscarriage of justice.

  • A conviction will be quashed for want of a unanimity direction even where the verdict is not unreasonable on the evidence, because the two questions are independent: the reasonableness of the verdict does not cure the absence of proper directions on unanimity.

  • The same conduct can, without inconsistency, be relied upon both as an act of assistance forming an element of an accessory offence and as evidence of consciousness of guilt. The Court of Criminal Appeal confirmed these are not mutually exclusive uses of the same evidence.

  • An Edwards direction, warning the jury about inferring consciousness of guilt from lies, may be appropriate even where the Crown does not ultimately press that reasoning in final address, particularly where defence counsel has requested the direction and raised no objection to the summing-up.

  • Where an aggregate sentence is quashed because one of the constituent convictions is set aside on appeal, the Court of Criminal Appeal has power under the Criminal Appeal Act 1912 (NSW) to resentence the applicant on the remaining properly convicted offences. An Intensive Correction Order imposed as part of that resentencing can be backdated to the original sentencing date.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 35(2), 114(1)(a), 347, 527C(1)(a)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW), s 7(1)
- Criminal Appeal Rules (NSW), r 4
- Criminal Procedure Act 1986 (NSW), s 166
- Evidence Act 1995 (NSW), s 38
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 17(1)

Cases:
- Edwards v The Queen (1993) 178 CLR 193
- Castagna v The Queen [2019] NSWCCA 114
- Chiro v The Queen (2017) 260 CLR 425
- KMC v Director of Public Prosecutions (SA) [2020] HCA 6
- Lane v The Queen (2018) 92 ALJR 689
- Libke v The Queen (2007) 230 CLR 559
- M v The Queen (1994) 181 CLR 487
- Pell v The Queen [2020] HCA 12
- R v Baden-Clay (2016) 258 CLR 308
- Blanch v R [2019] NSWCCA 304
- Papakosmas v The Queen (1999) 196 CLR 297