Citation: Taylor-Joycey v R [2021] NSWCCA 29
Court: Court of Criminal Appeal, NSW
Date: 10 March 2021
Judges: Leeming JA; Harrison J; Adamson J
Background
The appellant was convicted by a jury of two offences arising from events on 28 October 2017 at North Gosford. The first count was armed robbery under s 97(1) of the Crimes Act 1900 (NSW): the appellant was alleged to have produced a machete and taken approximately $150 from the complainant at his home. The second count was wounding with intent to cause grievous bodily harm under s 33(1)(a): the appellant later used the machete to cut the arm of a man who had confronted him in a takeaway shop demanding the return of the stolen money.
The appellant's defence to the robbery count was a flat denial: he said he was never at the complainant's home, and that the robbery allegation was fabricated to justify the attack on him. His defence to the wounding count was self-defence: he argued that he had been struck on the head with a toy baseball bat first and that he did not intend to cause grievous bodily harm.
The trial judge sentenced the appellant to a total effective term of nine years' imprisonment with a non-parole period of six years. The appellant challenged both his convictions and his sentence before the Court of Criminal Appeal.
Legal Issues
- Whether the trial judge erred in failing to direct the jury on the appellant's right to silence (s 89 of the Evidence Act 1995)
- Whether the directions on post-offence conduct and consciousness of guilt were adequate
- Whether the directions on the elements of count 2 and the statutory alternative were adequate
- Whether the trial judge erred in failing to give a direction about witnesses not called by the Crown (the so-called Jones v Dunkel direction)
- Whether the judge erred in failing to limit or warn the jury about hearsay evidence under ss 136 and 165 of the Evidence Act 1995
- Whether the judge failed to direct the jury on the alleged victim's motive to lie
- Whether the guilty verdicts were unreasonable and unsupported by the evidence
- Whether the sentence was manifestly excessive or otherwise infected by error
Decision
Grounds 1 to 6: Trial directions. The Court refused leave under r 4 of the Criminal Appeal Rules on each of these grounds. Rule 4 requires leave where a complaint about a misdirection or non-direction was not raised at trial. The Court, applying this rule, declined to grant leave on any of the six direction-related grounds, finding no sufficient basis to disturb the convictions on those bases.
Ground 7: Unreasonable verdicts. The Court granted leave but dismissed this ground. Adamson J reviewed the evidence in detail, and Leeming JA independently reviewed the trial, listened to the triple-0 call recordings, and viewed the mobile phone footage of the wounding incident. The Court concluded it was amply open to the jury, applying the criminal standard of proof, to accept the robbery complainant's account and reject the appellant's denial. On count 2, the Crown had sufficiently established the requisite intention to cause grievous bodily harm and had negatived self-defence.
Sentence appeal. The appellant contended, among other things, that the sentencing judge had erred in characterising count 2 as "objectively very serious." The Court rejected this argument. Adamson J noted that the assessment of objective seriousness is quintessentially a matter for the sentencing judge, and that the judge had in fact taken into account the absence of planning, the prior provocation, and the appellant's antecedent circumstances. The non-parole period imposed (five years) was below the standard non-parole period of seven years. No appellable error was identified in the sentencing exercise.
Orders Made
- Leave refused under r 4 of the Criminal Appeal Rules to appeal on grounds 1 to 6
- Leave granted to appeal against conviction on ground 7
- Appeal against conviction dismissed
- Leave granted to appeal against sentence
- Appeal against sentence dismissed
Key Takeaways
- In dismissing the conviction appeal, the Court of Criminal Appeal confirmed that where direction-related grounds were not raised at trial, an appellant must obtain leave under r 4 of the Criminal Appeal Rules, and leave will not be granted merely because such a ground is raised on appeal.
- A verdict challenged as unreasonable requires the appellate court to examine whether it was open to the jury on the whole of the evidence to be satisfied beyond reasonable doubt; here, the court found the verdicts on both counts were amply open.
- Where a jury is entitled to accept one witness's account and reject another's, the existence of a motive-to-lie argument does not, of itself, render a verdict unreasonable.
- The objective seriousness of a wounding offence is assessed by reference to all circumstances, including the nature of the weapon, the relative vulnerability of the victim, and the degree of force used; the absence of premeditation and the presence of some provocation are relevant but do not necessarily reduce the offence below a finding of "very serious."
- A non-parole period set below the statutory standard does not, without more, indicate appellable error in the sentencing discretion.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 97(1), 33(1)(a)
- Criminal Appeal Act 1912 (NSW)
- Criminal Appeal Rules 1952 (NSW), r 4
- Evidence Act 1995 (NSW), ss 38, 89, 136, 165, 191
Cases
- Cheung v The Queen (2001) 209 CLR 1
- Doe v R [2008] NSWCCA 203
- Dyers v The Queen (2002) 210 CLR 285
- Jones v Dunkel (1959) 101 CLR 298
- Louizos v R [2009] NSWCCA 71
- M v The Queen (1994) 181 CLR 487
- Mahmood v Western Australia (2008) 232 CLR 397
- MFA v The Queen (2002) 213 CLR 606
- Mulato v R [2006] NSWCCA 283
- Petty v The Queen (1991) 173 CLR 95
- R v Cao (2006) 65 NSWLR 552
- R v Isaacs (1997) 41 NSWLR 374
- R v Reeves (1992) 29 NSWLR 109
- SKA v The Queen (2011) 243 CLR 400
- The Queen v Baden-Clay (2016) 258 CLR 308
- The Queen v Olbrich (1999) 199 CLR 270