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Court of Criminal Appeal 21 July 2021

Connor v R; KC v R

[2021] NSWCCA 171

Assault & violence
CRIMINAL LAW UNREASONABLE VERDICT APPEAL ALLOWED FOR THREE APPELLANTS JUDGMENT IN RESPECT OF CO OFFENDERS DETERMINED SAME ISSUE EXTENSION OF TIME GRANTED

Citation: Connor v R; KC v R [2021] NSWCCA 171
Court: NSW Court of Criminal Appeal
Date: 21 July 2021
Judges: Bell P, Rothman J, Beech-Jones J

Background

Two applicants, Mitchell Connor and KC (whose name is suppressed under the Children (Criminal Proceedings) Act 1987 (NSW)), were convicted by a District Court jury in September 2019 on two counts of wounding with intent to cause grievous bodily harm. The charges arose from an incident on 30 December 2016 in which a group of males, disguised and assembled at a car park near Pennant Hills library, walked along Pennicook Lane and allegedly invaded the unit of two victims, assaulting them on their second-floor balcony.

Six co-accused were convicted alongside Mitchell Connor and KC, including SK, BK, MS and Mobin Sakieh. Mitchell Connor received a sentence of nine years imprisonment with a six-year non-parole period; KC received eight years with a non-parole period of five years and six months.

In May and June 2021, the Court of Criminal Appeal allowed the appeals of three co-offenders (SK, BK and MS) and entered acquittals, while dismissing the appeal of Mobin Sakieh. Mitchell Connor and KC then filed their own appeals, contending their position was not relevantly different from SK, BK and MS. The Crown conceded this was so.

  • Whether the convictions of Mitchell Connor and KC were unreasonable or unsupported by the evidence, within the meaning of s 6(1) of the Criminal Appeal Act 1912 (NSW)
  • Whether extensions of time to file appeals should be granted where legal aid had previously been refused and notices of intention to appeal had lapsed
  • Whether any evidence specifically incriminated Mitchell Connor or KC, as distinct from the broader group analysis applied to the co-offenders

Decision

The Court first considered whether to extend the time for each applicant to bring their appeals. Both applicants had filed notices of intention to appeal shortly after sentencing, but those notices lapsed after legal aid applications were refused on the basis of advice received. Extensions were granted because the lapsing of the appeals was attributable not to individual fault but to the outcome of the legal aid process. The strength of the substantive appeals also weighed in favour of granting the extension.

On the substantive question, the Court applied the reasoning from the earlier principal judgment (SK v R; BK v R; MS v R; Sakieh v R [2021] NSWCCA 130). In that case, all three judges accepted it was a reasonable possibility that only six of the seven group members who walked up Pennicook Lane returned, and that this possibility consistent with innocence had not been excluded by the trial evidence. A majority of the Court further found that, even if all group members returned, the evidence did not support the conclusion that every member necessarily entered the balcony or unit during the assaults.

The key distinction between Mobin Sakieh and the present applicants lay in the specific evidence available against each person. A majority in the principal judgment found that Sakieh's appeal failed because intercepted telephone calls contained admissions that specifically incriminated him. By contrast, the only evidence connecting Mitchell Connor and KC to EV's car (KC's fingerprints and documents in Mitchell Connor's name found inside the vehicle) did not establish that either man returned along Pennicook Lane or entered the balcony area. The Court found there were possibilities consistent with innocence explaining their presence in the car both before and after the attack.

The Crown conceded both convictions were unreasonable, and the Court accepted that concession as correct. Acquittals were entered on all relevant counts.

Orders Made

In respect of Mitchell Connor:
- Time to give notice of intention to apply for leave to appeal extended to 2 July 2021
- Leave to appeal granted
- Appeal allowed
- Convictions on Counts 1 and 3 set aside; acquittals on Counts 1 to 4 entered

In respect of KC:
- Time to give notice of intention to apply for leave to appeal extended to 29 June 2021
- Leave to appeal granted
- Appeal allowed
- Convictions on Counts 1 and 3 set aside; acquittals on Counts 1 to 4 entered

Key Takeaways

  • Where a Crown case rests on all members of a group participating in an offence, a conviction will be unreasonable if the evidence does not exclude the reasonable possibility that a particular member did not return to the scene or enter the relevant area.
  • The Court of Criminal Appeal confirmed that co-accused who did not participate in an earlier appeal can still benefit from findings made in that appeal, provided their position is not relevantly distinguishable on the evidence.
  • Evidence placing a defendant in a vehicle associated with an offence, without more, was held insufficient to establish presence at the specific location where the offending occurred.
  • Delays in filing appeals attributable to the refusal of legal aid, rather than to any fault of the applicant, may support the grant of an extension of time, particularly where the substantive appeal has clear merit.
  • A specific incriminating piece of evidence, such as the intercepted telephone admissions found against Mobin Sakieh, can be sufficient to distinguish one co-accused from others in the same group who obtain acquittals.

Legislation and Cases Referenced

Legislation:
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A(1)(a)
- Crimes Act 1900 (NSW), ss 33(1)(a), 35(3)
- Criminal Appeal Act 1912 (NSW), ss 6(1), 10(1)(a), 10(1)(b), 10(2)(a)

Cases:
- SK v R; BK v R; MS v R; Sakieh v R [2021] NSWCCA 130 (the principal judgment)