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7
Court of Criminal Appeal 26 February 2021

Attwater v R; Maris v R

[2021] NSWCCA 17

Sexual offencesHomicidePublic order & justice offences
CRIMINAL LAW TRIAL APPEAL AGAINST CONVICTION JOINT TRIAL AGGRAVATED SEXUAL ASSAULT MANSLAUGHTER

Citation: Attwater v R; Maris v R [2021] NSWCCA 17
Court: NSW Court of Criminal Appeal
Date: 26 February 2021
Judge(s): Bathurst CJ; Davies J; Wilson J

Background

On Australia Day 2011, a woman died from blood loss on a remote beach at Iluka, near Port Macquarie, after sustaining severe vaginal injuries. She had travelled to the beach for a camping and fishing trip with two men, and all three had consumed significant amounts of alcohol throughout the day.

In September 2017, a jury convicted the first appellant of manslaughter and aggravated sexual assault, and convicted the second applicant of aggravated sexual assault and doing an act with intent to hinder the discovery of evidence relating to a serious indictable offence. The hindering conviction arose from the second applicant burning a mattress and items of clothing at the scene. In December 2017, Fullerton J imposed an aggregate sentence of 19 years imprisonment with a non-parole period of 14 years and 3 months on the first appellant, and an aggregate term of 9 years with a non-parole period of 6 years and 9 months on the second applicant.

Both men sought to appeal their convictions and sentences. The first appellant filed his application in March 2020. The second applicant filed his application out of time in August 2020, requiring a formal extension of time.

  • Whether the trial judge erred in directing the jury on the use it could make of lies told by the appellants (the so-called "Edwards direction," derived from Edwards v The Queen (1993) 178 CLR 193)
  • Whether the convictions were unreasonable or could not be supported having regard to the evidence
  • Whether the sentencing judge erred in her findings of fact concerning the complainant's level of intoxication
  • Whether the sentencing judge failed to take into account the absence of planning as a mitigating factor
  • Whether the sentencing judge erred in her assessment of the seriousness of the offending
  • Whether sentencing delay constituted a mitigating feature
  • Whether extra-curial punishment (hardship suffered outside the court process) warranted mitigation
  • Whether post-offending conduct and prospects of rehabilitation were properly considered
  • Whether the sentences were manifestly excessive

Decision

Lies direction (Ground 1). An Edwards direction alerts a jury that it may only use a finding of deliberate lies as evidence of guilt if it first excludes innocent explanations for the lies, such as panic, fear, or embarrassment. The Court considered the precise terms of the trial judge's direction and, having regard to the evidence at trial and the particular lies relied upon by the Crown, concluded that no error was demonstrated. The direction, read as a whole, adequately guided the jury on the permissible uses of the lies evidence.

Unreasonable verdict (Ground 2). Both appellants contended their convictions could not be supported by the evidence, particularly on the question of the complainant's capacity to consent and her state of intoxication. The Court applied the well-established test from M v The Queen (1994) 181 CLR 487 and Pell v The Queen (2020) 94 ALJR 394, considering whether, acting on the whole of the evidence, it was open to the jury to be satisfied of guilt beyond reasonable doubt. The Court found that the evidence, including the extent of alcohol consumption, the nature of the injuries, and the post-incident conduct of each appellant, was capable of supporting each verdict. Leave to appeal on this ground was refused or, where granted, the ground failed.

Sentence appeals. The Court examined each of the asserted sentencing errors in turn. It upheld the sentencing judge's factual findings regarding the complainant's level of intoxication, finding they were supported by the evidence. The absence of planning, sentencing delay, extra-curial punishment, and post-offending conduct were all considered, but the Court found no demonstrated error in how the sentencing judge weighed those factors. On the hindering offence, the Court acknowledged that four years was a stern indicative sentence but noted the sentencing judge's finding of high moral culpability, the permanent destruction of important evidence, the absence of a guilty plea, the absence of remorse, and the element of self-interest in the conduct. The aggregate sentences were found to fall within the range of appropriate sentences and were not manifestly excessive.

Orders Made

  • An extension of time was granted to the second applicant to file his application for leave to appeal against conviction and sentence
  • Leave was granted to both applicants to appeal against conviction (to the extent leave was necessary)
  • Both conviction appeals were dismissed
  • Leave was granted to both applicants to appeal against sentence
  • Both sentence appeals were dismissed

Key Takeaways

  • An Edwards direction on lies must be assessed in the context of the charge as a whole; a technical imprecision will not constitute a ground of appeal unless it can be shown to have caused a miscarriage of justice.
  • In dismissing the unreasonable verdict grounds, the Court of Criminal Appeal confirmed that it must undertake its own independent review of the evidence, but that the critical question remains whether it was open to the jury, on that evidence, to be satisfied beyond reasonable doubt.
  • High moral culpability, permanent destruction of evidence, absence of a guilty plea, and absence of demonstrated remorse collectively supported a stern indicative sentence for the hindering offence, even where the maximum penalty was seven years.
  • Sentencing delay, extra-curial punishment, and post-offending conduct are recognised mitigating considerations, but their weight is a matter for the sentencing judge; no error arises merely from a judge declining to give them substantial weight.
  • The absence of planning is a relevant sentencing factor, but failure to expressly identify it as a mitigating feature will not constitute error where the overall sentencing approach is otherwise sound.

Legislation and Cases Referenced

Legislation
- Coroner's Act 2009 (NSW)
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW)

Cases
- Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41
- Dhanhoa v The Queen (2003) 217 CLR 1
- Edwards v The Queen (1993) 178 CLR 193
- Gibson v R [2019] NSWCCA 221
- Hordern v R [2019] NSWCCA 138
- Ibrahim v R [2005] NSWSC 1028
- Kerr v R [2016] NSWCCA 218
- Libke v The Queen (2007) 230 CLR 559
- M v The Queen (1994) 181 CLR 487
- Mulato v R [2006] NSWCCA 282
- Pell v The Queen (2020) 94 ALJR 394
- Perrin v R [2006] NSWCCA 64
- R v Attwater; R v Maris [2017] NSWSC 1710
- R v Baker [2000] NSWCCA 85
- R v Button; R v Griffen (2002) 54 NSWLR 455
- R v Daetz [2003] NSWCCA 216
- R v O'Donoghue (1988) 34 A Crim R 397
- R v Smith [2017] NSWSC 900
- R v Sutton (1986) 5 NSWLR 697
- R v Toia Siulai [2004] NSWCCA 152