Citation: SK v R; BK v R; MS v R; Sakieh v R [2021] NSWCCA 130
Court: NSW Court of Criminal Appeal
Date: 25 June 2021
Judges: Bell P, Rothman J, Beech-Jones J
Background
Four appellants were convicted in the District Court on charges of wounding with intent to cause grievous bodily harm. The charges arose from a violent group assault on two victims in their unit on 30 December 2016. The Crown's case was that the appellants were among a group of young males who walked along Pennicook Lane, climbed an external staircase to the second-storey unit, and carried out the attack. One victim suffered lacerations to his neck and shoulder requiring surgery; the other suffered a stab wound to the back, a collapsed lung, and lacerations to his forearms and fingers.
The Crown relied heavily on CCTV footage to establish that each appellant was part of the group, and on the victims' evidence to establish the number of people who entered the balcony and unit. The prosecution framed the case as a joint criminal enterprise, requiring proof that each accused entered the balcony area, entered the unit, or was on the stairs above the first-level entrance at the time of the assault.
Three appellants (SK, BK, and MS) appealed on the ground that their convictions were unreasonable or unsupported by the evidence. A fourth appellant, Sakieh, also appealed, but his case involved additional intercepted telephone calls not available against the others.
Legal Issues
- Whether the verdicts against SK, BK, and MS were unreasonable or unsupported by the evidence, applying the principles in Pell v The Queen and related authorities
- Whether the CCTV footage and victims' evidence were sufficient to exclude a reasonable hypothesis that at least one member of the group did not return down the laneway or did not enter the balcony area
- Whether intercepted telephone calls involving Sakieh were sufficient to establish his presence on the balcony, notwithstanding the evidentiary gap affecting the other three appellants
Decision
The critical evidentiary problem was a discrepancy in the CCTV footage. The footage of the group walking up Pennicook Lane showed at least seven persons; the footage of the group returning down the laneway appeared to show only six. The court found this discrepancy left open the real possibility that one or more group members had continued toward a separate, anticipated confrontation near Fitness First Pennant Hills and did not participate in the assault at all. This was not mere speculation: there was an identified destination to which some members may have continued, and the footage affirmatively suggested fewer people returned.
The victims' evidence did not resolve the uncertainty. Both Mr Krisenthal and Mr Wordsworth gave estimates of the number of assailants that were uncertain and internally inconsistent. Mr Krisenthal's evidence rose no higher than three people on the balcony. Mr Wordsworth's highest estimate (around six to eight) sat uncomfortably with other parts of his evidence suggesting he directly observed significantly fewer. Neither victim could state with confidence how many people were actually on the balcony or in the unit.
Because it could not be established which member or members of the original group had not returned, the court found that absent specific inculpatory evidence, any individual appellant could have been the person who did not participate. The Crown had not excluded this reasonable hypothesis to the requisite standard. Bell P acknowledged the outcome was a source of real unease given the brutal nature of the assaults, but applied Blackstone's maxim that it is better for guilty persons to escape than for one innocent person to be convicted. The appeals of SK, BK, and MS were allowed.
Sakieh's position was different. Intercepted telephone calls, admissible only against him, were found by the majority to demonstrate his presence on the balcony during the assault. His appeal was dismissed.
Orders Made
- Appeals of SK, BK, and MS allowed; convictions on counts 1 and 3 set aside; acquittals entered on counts 1 to 4
- An additional application made on behalf of SK (concerning consequential sentence adjustments) was addressed separately
- Appeal of Sakieh dismissed
Key Takeaways
- A conviction is unreasonable where the evidence leaves open a rational hypothesis consistent with innocence; the mere presence of a person in a group does not establish participation in a joint criminal enterprise if membership of the relevant subset of that group cannot be proven.
- The Court of Criminal Appeal confirmed that poor-quality CCTV footage, though relied upon by the Crown to place accused persons at a location, may simultaneously generate an evidentiary gap that prevents proof of each accused's specific involvement.
- Where victim evidence as to the number of assailants is genuinely uncertain and internally inconsistent, it cannot reliably close an evidentiary gap created by other Crown evidence.
- Intercepted telephone communications admissible against only one accused can sustain that accused's conviction even where identical reasoning requires acquittals for co-accused who lack equivalent inculpatory evidence.
- In dismissing Sakieh's appeal while allowing the others, the court illustrated that outcomes in joint criminal enterprise cases can diverge sharply between co-accused depending on the individual evidentiary record against each person.
Legislation and Cases Referenced
Legislation
- Children (Criminal Proceedings) Act 1987 (NSW)
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW)
Cases
- Pell v The Queen (2020) 268 CLR 123
- R v Hillier (2007) 228 CLR 618
- Barca v The Queen (1975) 133 CLR 82
- Strbak v The Queen (2020) 267 CLR 494
- The Queen v Baden-Clay (2016) 258 CLR 308
- Shepherd v The Queen (1990) 170 CLR 573
- Libke v The Queen (2007) 230 CLR 559
- Azzopardi v The Queen (2001) 205 CLR 50
- RPS v The Queen (2000) 199 CLR 620
- Weissensteiner v The Queen (1993) 178 CLR 217
- Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345
- R v Wanhalla [2007] 2 NZLR 573
- RD (a pseudonym) v R [2021] NSWCCA 94