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Court of Criminal Appeal 21 March 2022

Spiteri-Ahern v R

[2022] NSWCCA 56

Homicide
CRIMINAL LAW TRIAL BY JUDGE ALONE W HETHER VERDICT UNREASONABLE REASONS REQUIREMENT IN JUDGE WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: Spiteri-Ahern v R [2022] NSWCCA 56
Court: Court of Criminal Appeal, NSW
Date: 21 March 2022
Judges: Meagher JA; R A Hulme J; Davies J

Background

The appellant was convicted of murder following a judge-alone trial in the Supreme Court before Rothman J. The victim was shot and killed at Pendle Hill on 30 October 2013 by a co-participant, Daniel Haile. The Crown alleged the appellant was jointly criminally responsible for the murder, having arranged and paid for Haile to kill or cause grievous bodily harm to the victim pursuant to a joint criminal enterprise.

The appellant and the victim had a troubled prior relationship, including an alleged stabbing incident and a terminated pregnancy, which the Crown relied upon as evidence of motive. The trial ran for 24 days across August to October 2017, with two co-accused also tried (and ultimately acquitted). The trial judge convicted the appellant on 21 December 2017 and sentenced her on 13 July 2018 to 30 years' imprisonment with a non-parole period of 18 years.

The appellant sought leave to appeal against both conviction and sentence on four grounds, though one ground (concerning a provisionally admitted exhibit never ruled upon by the trial judge) was not pressed, with both parties agreeing that exhibit should be disregarded.

  • Whether the conviction was unreasonable or unsupported by the evidence, including whether the trial judge was entitled to accept contested witness evidence and rely on admissions made by the appellant
  • Whether the trial judge's reasons were adequate, particularly in addressing the defence case, as required under s 133(2) of the Criminal Procedure Act 1986 (NSW)
  • Whether, in a judge-alone trial, the trial judge was required to notify the appellant before giving himself a warning about the unreliability of a particular witness's identification evidence and to afford the appellant an opportunity to make submissions
  • Whether the sentence of 30 years' imprisonment was manifestly excessive

Decision

Unreasonable verdict (Ground 1): The Court of Criminal Appeal found it was open to the trial judge to accept the evidence of Esther Rice-Clarke, a witness who gave evidence of the appellant's pre-offence statements indicating an intention to harm the victim, and post-offence admissions of involvement in the shooting. The Court applied the test from M v The Queen and Pell v The Queen, asking whether a reasonable tribunal of fact could be satisfied of guilt beyond reasonable doubt. It concluded the verdict was not unreasonable, notwithstanding the contested nature of some evidence.

Adequacy of reasons (Ground 2): The Court acknowledged the obligation under s 133(2) of the Criminal Procedure Act for a judge sitting alone to provide reasons. It found the trial judge's reasons, while not exhaustive, were sufficient to demonstrate that the key issues, including the defence case, had been considered. No error was established on this ground.

Warning as to identification evidence (Proposed Ground 3A): The Court refused leave on this proposed ground. The question of the trial judge's rejection of a witness's identification evidence overlapped substantially with grounds 1 and 2, and was addressed in that context. The Court did not accept that any obligation arose to notify the appellant before the trial judge gave himself a direction under s 165(2) of the Evidence Act 1995 (NSW) and declined to accept that identification in the manner proposed.

Manifest excess (Ground 4): The Court granted leave to appeal against sentence but dismissed the appeal. The sentencing judge had considered all matters raised by the appellant, including her age, mental health, background, and minimal criminal record, and had applied a generous reduction to the statutory parole ratio to assist rehabilitation. The head sentence of 30 years was not demonstrated to be plainly unjust or unreasonable for a murder described as above the midrange of objective seriousness, planned and organised by the appellant pursuant to a contractual arrangement.

Orders Made

  • Leave to appeal refused on Ground 3 and proposed Ground 3A
  • Leave to appeal granted on Grounds 1, 2 and 4
  • Appeal dismissed

Key Takeaways

  • A conviction based substantially on circumstantial evidence and disputed witness admissions will survive an unreasonable verdict challenge where it was open to a reasonable tribunal of fact to accept that evidence and be satisfied of guilt beyond reasonable doubt.
  • Under s 133(2) of the Criminal Procedure Act 1986 (NSW), a judge sitting alone must provide reasons for verdict, but the obligation does not require exhaustive treatment of every piece of evidence; it requires sufficient reasons to demonstrate that the key issues, including the defence case, were addressed.
  • No obligation arose in this judge-alone trial for the trial judge to give advance notice to the parties before giving himself a direction about the unreliability of identification evidence and declining to accept it.
  • In dismissing the sentence appeal, the Court of Criminal Appeal confirmed that a generous parole period granted for rehabilitation purposes does not of itself render a head sentence manifestly excessive; the sentence must be assessed as a whole.
  • Where a sentencing court has explicitly considered the offender's subjective circumstances, including age, mental health, and criminal history, in the context of parity with a co-offender, an appellate court will not readily find error absent a clear demonstration that the head sentence falls outside the permissible range.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5(1)
- Criminal Procedure Act 1986 (NSW), s 133
- Evidence Act 1995 (NSW), s 165(2)

Cases:
- Dhanhoa v The Queen (2003) 217 CLR 1; [2003] HCA 40
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
- Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68
- Handlen v The Queen (2011) 245 CLR 282; [2011] HCA 51
- Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
- W v R [2014] NSWCCA 110
- Wade v R [2018] NSWCCA 85