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Court of Criminal Appeal 30 June 2023

Noud v R

[2023] NSWCCA 157

Firearms & weaponsDomestic & family violence
CRIME APPEALS APPEAL AGAINST CONVICTION MULTIPLE FIREARM OFFENCES PHYSICAL AND VERBAL DOMESTIC ARGUMENT UP BY THE COMPLAINANT

Citation: Noud v R [2023] NSWCCA 157
Court: Court of Criminal Appeal, New South Wales
Date: 30 June 2023
Judges: Davies J (principal judgment); Fagan J and Yehia J agreeing

Background

The applicant was charged with seven counts and three related offences arising from a domestic incident on 27 September 2018. The complainant, his partner of approximately six years, told him she wished to end the relationship. A physical and verbal argument followed. During that argument, the applicant smashed the windows of her car with a walking stick, pushed her outside a garage, and waved a Midland 12 gauge shortened shotgun at her before taking it into the garage.

When police arrived, they found the Midland shotgun in the garage and three additional firearms and two prohibited weapons in the main bedroom. The Crown relied on an email, purportedly between the parties, as evidence that the applicant had possession of the guns. The applicant denied this, alleging the complainant had planted the firearms.

The jury convicted the applicant on count 4 (possessing the Midland shortened shotgun without authority) but acquitted him on counts 1, 2, 3 and 5, including the domestic violence intimidation charge. At the subsequent sentence hearing, the sentencing judge found him guilty of two further offences on a certificate under s 166 of the Criminal Procedure Act and he pleaded guilty to a property damage charge. He was sentenced to an aggregate term of 3 years and 4 months imprisonment. He appealed both the conviction and the sentence.

  • Whether the jury's guilty verdict on count 4 was unreasonable or unsupported by the evidence, given that the jury acquitted on other related counts that also depended on the complainant's credibility.
  • Whether the verdicts on the two certificate offences (possessing an unregistered firearm and common assault, domestic violence related) were similarly unreasonable.
  • Whether the sentencing judge erred by failing to address general and specific deterrence in circumstances where the applicant's mental health was raised as a basis for reducing their weight.
  • Whether the aggregate sentence was manifestly excessive.

Decision

Conviction appeal: inconsistent verdicts

The Court applied the principle, drawn from Dansie v The Queen and earlier authorities, that where inconsistency between verdicts is raised, it is the acquittals, not the convictions, that must be examined. If the acquittals can be explained logically and reasonably without undermining the complainant's credibility, the guilty verdicts are not necessarily unreasonable. The Court found several rational explanations for the acquittals on the other firearm counts: the three bedroom firearms were found under a heavy bed and would have been difficult for the applicant, who had a physical disability, to extract. DNA evidence on those firearms was inconclusive, including the complainant as a possible contributor. By contrast, the complainant gave detailed and specific evidence about the Midland shotgun, including that it was wrapped in a t-shirt and stored in the garage. Minor discrepancies in her evidence were assessed as more consistent with honest mistake than deliberate fabrication.

The intimidation count also required proof of four discrete elements, whereas the common assault certificate offence did not, providing a separate basis for the different outcomes. The Court dismissed both conviction grounds, with Yehia J independently assessing the evidence and reaching the same conclusion.

Conviction appeal: Murray direction

A subsidiary argument was raised about the sentencing judge not giving himself a direction concerning lies told by the applicant at trial (a so-called "Murray direction"), which had been given to the jury. The Court held this was not an error. Counsel had not sought such a direction at the sentencing hearing, and a party is bound by the forensic decisions of their counsel.

Sentence appeal: failure to address deterrence

The Court upheld the first ground of the sentence appeal. Deterrence is a statutory purpose of sentencing under the Crimes (Sentencing Procedure) Act 1999 (NSW) s 3A. The applicant had expressly argued, on the basis of his mental health, that the weight to be given to both general and specific deterrence should be reduced. The sentencing judge acknowledged the Bugmy principles (concerning the relevance of mental health and disadvantage to moral culpability) but made no explicit reference to deterrence in the remarks on sentence. The Court found this constituted a failure to give adequate reasons on a matter that had been squarely raised.

Despite identifying that specific error, the Court conducted its own sentencing exercise using indicative sentences for each offence. It concluded that no lesser sentence than the 3 years and 4 months aggregate was warranted, and accordingly dismissed the sentence appeal.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Where a conviction appeal is based on inconsistency between verdicts, the Court of Criminal Appeal examines the acquittals to determine whether they can be explained rationally without impugning the credibility of the Crown's key witness. Guilty verdicts are not automatically unreasonable merely because the jury acquitted on related counts.

  • Detailed and specific evidence from a complainant about one particular item or act can rationally support a conviction on that count, even where less specific or more ambiguous evidence on other counts leads to acquittals.

  • A sentencing judge commits error by failing to address, in the remarks on sentence, a recognised sentencing purpose that a party has expressly argued should be weighted differently. Silence on a raised argument is not adequate reasoning.

  • Establishing specific sentencing error does not automatically result in a reduced sentence. The Court of Criminal Appeal will conduct its own assessment and dismiss the appeal if the original sentence falls within an acceptable range.

  • A party is bound by the procedural and forensic decisions of their counsel. The sentencing judge's omission of a direction that counsel had not requested at the hearing did not constitute error.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW) ss 61, 195
- Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 13
- Crimes (Sentencing Procedure) Act 1999 (NSW) s 3A
- Firearms Act 1996 (NSW) ss 7A, 36, 62
- Weapons Prohibition Act 1998 (NSW) s 7

Cases
- Bugmy v The Queen (1990) 169 CLR 525
- Craig v The Queen [2018] HCA 13; (2018) 264 CLR 202
- Dansie v The Queen [2022] HCA 25; (2022) 96 ALJR 728
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1
- Douglass v The Queen [2012] HCA 34; (2012) 86 ALJR 1086
- Hamilton (a pseudonym) v The Queen [2021] HCA 33; (2021) 95 ALJR 894
- Lee, Matthew v R [2016] NSWCCA 146
- MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606
- Pell v The Queen [2020] HCA 12; (2020) 268 CLR 123
- R v Lachlan [2015] NSWCCA 178; (2015) 252 A Crim R 277
- TK v R [2009] NSWCCA 151; (2009) 74 NSWLR 299
- Walker v R [2019] NSWCCA 4; (2019) 96 NSWLR 1