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Court of Criminal Appeal 17 February 2022

Anda v R

[2022] NSWCCA 29

Assault & violence

Citation: Anda v R [2022] NSWCCA 29
Court: Court of Criminal Appeal, NSW
Date: 17 February 2022
Judges: McCallum JA (principal judgment); Rothman J and Ierace J agreeing

Background

The applicant and a co-accused were tried jointly in the District Court on an indictment containing three counts: specially aggravated kidnapping, aggravated kidnapping (as an alternative), and assault occasioning actual bodily harm in company (as a further alternative). All counts were framed as joint counts against both men. The charges arose from an early-morning confrontation at the complainant's home, where both accused attended to recover a debt. The complainant alleged he was punched several times by the co-accused and slapped multiple times by the applicant, before being driven to an ATM and forced to withdraw $500.

The jury acquitted the co-accused on all three counts and found the applicant guilty on count three, the assault charge. The applicant was released without conviction on a conditional release order for two years. Despite the absence of a conviction, he retained the right to appeal under s 10(5) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

The applicant sought leave to appeal against his conviction on two grounds: that the verdicts were inconsistent, and that the trial judge erred in directing the jury that different verdicts were open on count three.

  • Whether the acquittal of the co-accused on count three was legally inconsistent with the applicant's conviction on the same joint count for assault occasioning actual bodily harm in company.
  • Whether the trial judge erred in directing the jury that different verdicts were available on count three as between the two accused.
  • Whether, if the case left to the jury differed from the offence as charged on the indictment, any resulting defect caused a miscarriage of justice.

Decision

The Court of Criminal Appeal dismissed the appeal. McCallum JA found that the verdicts were not inconsistent, because counts one and two rested on a joint criminal enterprise theory while count three did not. For the kidnapping counts, the Crown relied on joint criminal enterprise, meaning each accused could be held responsible for the other's acts. For count three, the Crown expressly disavowed any joint criminal enterprise basis and put the case on the footing that each man had separately assaulted the complainant, in the company of the other.

The phrase "in company" in count three operated as a circumstance of aggravation, exposing each accused to the more serious version of the assault offence. It did not extend one man's criminal liability to cover the other's acts. There was a rational basis for the jury to be satisfied beyond reasonable doubt that the applicant's slap caused actual bodily harm while not being satisfied that the co-accused's punches caused actual bodily harm. The verdicts were therefore explicable and not inconsistent.

A further question, raised by Rothman J during argument, was whether the offence actually tried was the offence charged on the indictment. Count three was framed as a single joint count implying one combined assault, yet the case put to the jury involved two separate assaults by two different men. McCallum JA accepted that the indictment was technically defective for failing to specify separate counts for each separate assault. However, drawing on Mackay v R (1977) 136 CLR 465, her Honour held the defect was one of form only. The case against the applicant was clear, the jury's different verdicts demonstrated it understood exactly what it had to determine, and no miscarriage of justice resulted.

The Court applied the proviso in s 6(1) of the Criminal Appeal Act 1912 (NSW), which permits a conviction to stand despite a legal error where no substantial miscarriage of justice has occurred. As the point about the defective indictment had only been raised in supplementary submissions requested by the Court itself, it was sufficient to find that the applicant's stated grounds of appeal were not made out.

Orders Made

  • Leave to appeal granted (to the extent required).
  • Appeal dismissed.

Key Takeaways

  • A "in company" aggravation in an assault charge under s 59(2) of the Crimes Act 1900 (NSW) does not expand the criminal liability of one accused to cover the acts of the other; it operates only as a circumstance that elevates the seriousness of each person's own conduct.
  • Where a Crown case relies on joint criminal enterprise for some counts but not others, different verdicts as between co-accused on those separate counts are not necessarily legally inconsistent.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a technically defective indictment, where a single joint count was used to charge what were in substance separate assaults by two different accused, will not produce a miscarriage of justice if the accused's case was clear, the jury plainly understood what it had to determine, and no prejudice resulted.
  • The Court applied the Mackay v R principle that a defect in indictment form is amenable to the proviso where the jury knew precisely what it was deciding, as evidenced here by the different verdicts returned against each accused.
  • An accused released without conviction under a conditional release order retains full rights of appeal against conviction by operation of s 10(5) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 59(2), 86(2), 86(3)
- Criminal Appeal Act 1912 (NSW), s 6(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10(5)

Cases
- Mackay v R (1977) 136 CLR 465; [1977] HCA 22
- Mackenzie v R (1996) 190 CLR 348; [1996] HCA 35
- R v Brougham (1986) SASR 187
- R v Button; R v Griffen (2002) 54 NSWLR 455; [2002] NSWCCA 159