AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
3
Court of Criminal Appeal 11 August 2021

Sakhra v R

[2021] NSWCCA 187

Theft & property
CRIMINAL LAW APPEAL AGAINST CONVICTION WHETHER JURY’S VERDICTS UNREASONABLE VICTIMS DID NOT IDENTIFY APPELLANT CONVICTIONS QUASHED

Citation: Sakhra v R [2021] NSWCCA 187
Court: NSW Court of Criminal Appeal
Date: 11 August 2021
Judges: Leeming JA at [1]; Wilson J at [89]; Ierace J at [90]

Background

The appellant was tried jointly with two co-accused over five counts arising from four successive robberies in North Sydney in October 2017. A fourth man, who had pleaded guilty and received a discounted sentence, gave evidence as the main Crown witness. He admitted to having been the driver of the vehicle used across all four nights.

The appellant was acquitted by directed verdict on three of the five counts during trial. The jury convicted him on two remaining counts: an armed robbery with wounding on the evening of 9 October (count 2) and a robbery in company on 10 October (count 3). He was sentenced to an aggregate term of 8 years and 6 months with a non-parole period of 4 years and 9 months, though bail was continued pending appeal.

Neither victim identified the appellant. No physical or forensic evidence connected him to the offences. The Crown case on both counts depended substantially on the evidence of the driver, who gave his evidence through an Arabic interpreter over four days of cross-examination.

  • Whether the jury's guilty verdicts on counts 2 and 3 were unreasonable and could not be supported by the evidence, pursuant to s 6(1) of the Criminal Appeal Act 1912 (NSW)
  • Whether it was open to the jury to be satisfied beyond reasonable doubt that the appellant was present at the relevant robberies and participated in a joint criminal enterprise on each occasion

Decision

Leeming JA, with Wilson J and Ierace J agreeing, concluded that the verdicts were unreasonable and could not be supported by the evidence. The Court allowed the appeal, quashed both convictions, and entered acquittals. The Crown did not oppose the entry of acquittals once the appeal was allowed.

The driver's evidence, which formed the foundation of the Crown case, was found to be seriously undermined by internal inconsistencies. In particular, his claim that he had not seen the victims or the robberies was difficult to reconcile with his apparent knowledge of specific details, such as the nature of one victim's knee wound and the appearance of another victim. His evidence also appeared shaped by a motive to minimise his own involvement while complying with his plea arrangement.

A further significant inconsistency concerned language. The driver gave evidence that he could not understand conversations among the car's passengers because they were speaking Kurdish. This was inconsistent with the appellant's involvement, because the appellant spoke Dari and did not speak Kurdish. The Court found this element raised a real doubt about whether the appellant was one of the men described.

In relation to count 2 specifically, the victim's own evidence raised doubt as to whether the second person present had actually participated in a joint criminal enterprise at all. Wilson J observed that, while serious weight must always be given to a jury's verdict before it is disturbed, this was a case in which the jury must have entertained a very real doubt about the appellant's guilt, and his conviction amounted to a miscarriage of justice.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Verdicts of guilty on counts 2 and 3 quashed
  • Verdicts of acquittal entered on counts 2 and 3 in lieu thereof

Key Takeaways

  • A conviction will be set aside as unreasonable where the principal Crown witness is internally inconsistent, has an apparent motive to give self-serving evidence, and their account is contradicted by objective facts in the case.
  • Where the only evidence connecting an accused to an offence comes from a co-offender who pleaded guilty and received a sentencing discount, appellate courts will scrutinise that evidence carefully for reliability and consistency.
  • Specific factual inconsistencies carry particular weight: the driver's claim that passengers spoke Kurdish, when the appellant spoke only Dari, was a concrete inconsistency that undermined the Crown's identification of the appellant as a participant.
  • The Court of Criminal Appeal confirmed that, even making allowance for the advantages a jury holds in assessing witnesses, an appellate court is entitled to conclude that it was not open to the jury to be satisfied beyond reasonable doubt on the evidence presented.
  • In dismissing opposition to acquittals, the Crown's concession that verdicts of acquittal should be entered (rather than a retrial ordered) reflected the state of the evidence and the identified flaws in the prosecution case.

Legislation and Cases Referenced

Legislation:
- Bail Act 2013 (NSW), s 22
- Crimes Act 1900 (NSW), ss 35, 97, 98
- Criminal Appeal Act 1912 (NSW), ss 5, 6
- Evidence Act 1995 (NSW), ss 38, 165

Cases:
- Director of Public Prosecutions Reference No 1 of 2017 (2019) 267 CLR 350; [2019] HCA 9
- Doney v The Queen (1990) 171 CLR 207; [1990] HCA 51
- Innes v R [2018] NSWCCA 90; 272 A Crim R 351
- KBT v The Queen (1997) 191 CLR 417; [1997] HCA 54
- Kim v R [2020] NSWCCA 288
- Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- Palmer v R [2018] NSWCCA 205
- Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
- Pethybridge v R [2020] NSWCCA 185
- R v R (1989) 18 NSWLR 74
- R v Tangye (1997) 92 A Crim R 545
- SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
- The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35