Delaney v R [2023] NSWCCA 181

Citation: Delaney v R [2023] NSWCCA 181
Court: NSW Court of Criminal Appeal
Date: 24 July 2023
Judge(s): Payne JA (principal judgment), Stern JA and Yehia J (agreeing)

Background

On Boxing Day 2019, the appellant physically assaulted the deceased beneath a bridge in Queanbeyan following a breakdown in their relationship. The appellant had sent threatening messages in the early hours of that morning and arrived at the location shouting abuse before punching the deceased repeatedly and delivering a series of knee-blows to his abdomen. The deceased collapsed shortly after and later died in hospital from a ruptured spleen, which caused internal bleeding and heart failure.

The appellant was tried before a Supreme Court jury in February 2022 on a charge of murder. The jury was also left with the alternative verdict of manslaughter by unlawful and dangerous act. On 22 February 2022, the jury returned a verdict of guilty of murder and the appellant was sentenced to 16 years' imprisonment with a non-parole period of 12 years.

The appellant sought leave to appeal out of time against his conviction, with the amended relief ultimately seeking to quash the conviction entirely rather than merely substitute a manslaughter verdict.

Legal Issues

Whether the jury's verdict of murder was unreasonable or could not be supported having regard to the evidence, under s 6 of the Criminal Appeal Act 1912 (NSW)
Whether, on the evidence, the jury must have entertained a doubt that one or more blows inflicted by the appellant caused the deceased's death (causation)
Whether, on the evidence, the jury must have entertained a doubt that the appellant intended to kill the deceased or cause him grievous bodily harm (intention)

Decision

Standard of review. The Court confirmed the established test for an unreasonable verdict appeal: the question is not whether the jury might have entertained a doubt, but whether it must have done so. The Court of Criminal Appeal must independently assess all the evidence while still giving appropriate weight to the jury's advantage in observing witnesses, including their demeanour and live demonstrations.

Causation. The Court found no basis for a doubt on causation. The sole eyewitness, Mr Wipiiti, gave evidence of between two and four knee-blows to the deceased's ribs or abdomen and demonstrated those blows on video to police. The Court found this evidence credible and reliable even on the written record, and concluded that one or more knee-blows had connected with the deceased's abdomen. The forensic pathologist confirmed that such a blow could rupture a spleen. Two alternative explanations were considered: a "poleaxe fall" described by another witness (Mr Leleu) and the possibility of some other fall in the hours before death. The Court found Mr Leleu's evidence vague, unconvincing, and inconsistent with his own triple zero call made shortly after the fall was said to occur. Even accepting a fall had occurred, the Court noted the jury was entitled to find that the fall itself was substantially caused by the blows the appellant had inflicted. The broader hypothesis that an earlier fall had caused the rupture was also rejected as providing no real reason for doubt.

Intention. The Court rejected the argument that the jury must have doubted the appellant's intention to cause grievous bodily harm. The appellant's pre-assault text messages, Facebook posts, and verbal threats before and during the assault (including "I'm going to fucking kill you" and "I'm going to cut your fucking head off") were weighed against his self-serving denials in his police interview. Those denials were inconsistent with his own electronic communications made around the time of the attack. Together with the ferocity of the assault itself, this evidence left the Court with no doubt the appellant intended, at minimum, to cause the deceased grievous bodily harm.

Orders Made

Leave to appeal out of time granted
Leave to appeal granted
Appeal dismissed

Key Takeaways

When a jury verdict is challenged as unreasonable, an appellate court must independently assess the whole of the evidence and ask whether the jury must have entertained a doubt, not merely whether it might have done so. This distinction, confirmed across a line of High Court authority, sets a demanding threshold for appellants.
A Court of Criminal Appeal must not discount the jury's advantage in observing witnesses give evidence, particularly where witness demonstrations or demeanour formed part of the evidence at trial.
In circumstantial cases, all circumstances must be weighed together as a whole. Considering each piece of evidence in isolation and asking whether it alone raises doubt is not the correct approach.
Where alternative explanations are advanced for a cause of death, it is sufficient for the Crown's case that the jury was entitled to find those alternatives unpersuasive on the evidence. Neither a vague account of a fall nor speculation about earlier incidents displaced the jury's entitlement to accept the eyewitness evidence here.
Pre-offence electronic communications threatening violence can constitute cogent evidence of intention, and a jury is entitled to prefer those communications over a defendant's later, inconsistent denials made in a police record of interview.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 6
- Crimes (Domestic and Personal Violence) Act 2007 (NSW)

Cases
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30
- R v Hillier (2007) 228 CLR 618; [2007] HCA 13
- SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
- The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
- Fennell v The Queen [2019] HCA 37; (2019) 373 ALR 433
- Coughlan v The Queen (2020) 267 CLR 654; [2020] HCA 15
- Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
- Dansie v R (2022) 96 ALJR 728; [2022] HCA 25
- R v Delaney [2022] NSWSC 492