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Court of Criminal Appeal 6 October 2023

Fainu v R

[2023] NSWCCA 249

Assault & violence
CRIME APPEALS APPEAL AGAINST CONVICTION WHETHER JURY ’ S VERDICT UNREASONABLE APPEAL DISMISSED

Citation: [2023] NSWCCA 249
Court: NSW Court of Criminal Appeal
Date: 6 October 2023
Judges: Leeming JA (at [1]); N Adams J (at [40]); Dhanji J (at [41])

Background

The applicant was convicted following a ten-day District Court trial of wounding with intent to cause grievous bodily harm, contrary to s 33(1)(a) of the Crimes Act 1900 (NSW). The offence arose from a late-night altercation in a church carpark at Wattle Grove on 25 October 2019. The complainant sustained a knife wound to the back, beneath his right shoulder, which collapsed his lung and caused internal bleeding.

The applicant attended the church party with four other men, was asked to leave, and then returned with those men to the carpark where fighting broke out between the two groups. CCTV footage captured the applicant and his companions arriving at an adjacent Coles supermarket carpark, climbing over a fence into the church carpark, and returning to the Coles loading dock within minutes. The applicant drove the group's vehicle and was the first over the fence on both crossings.

The sole question at trial was whether the applicant was the person holding the knife. The applicant denied involvement in the melee, denied having a knife, and denied attempting to conceal his identity. The jury rejected his account and returned a guilty verdict.

  • Whether the jury's verdict of guilty was unreasonable, within the meaning of that ground of appeal under s 5(1) of the Criminal Appeal Act 1912 (NSW)
  • Specifically, whether the evidence of the key eyewitness identifying the applicant as the knife-wielder was so inadequate that a guilty verdict was not open on the whole of the evidence

Decision

The applicable test, drawn from M v The Queen (1994) and confirmed in Dansie v The Queen (2022), required the Court of Criminal Appeal to ask whether, on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt of the applicant's guilt. That assessment required the Court to conduct its own independent evaluation while also giving weight to the jury's advantage of having seen and heard the witnesses over the course of a ten-day trial.

The applicant's entire appeal rested on attacking the reliability of one eyewitness, Mr Quach, who gave evidence that he saw the applicant stab the complainant. The applicant pointed to inconsistencies between Mr Quach's account and other eyewitness evidence, including in diagram exhibits showing the positions of the men during the altercation. Leeming JA noted that the applicant's senior counsel at trial had already placed all of those inconsistencies squarely before the jury in closing submissions.

Leeming JA rejected the submission that the case stood or fell on Mr Quach's evidence alone. A second witness, Kupi, also unambiguously identified the man with his arm in a sling as the person wielding the knife. Both witnesses corroborated each other in that critical respect, even if their recollections of the location and number of men differed.

On the whole of the evidence, including the CCTV footage, the applicant's own concessions during cross-examination, and the testimony of both eyewitnesses, Leeming JA concluded it was amply open to the jury to return a guilty verdict. Leave to appeal was granted but the appeal was dismissed. N Adams J and Dhanji J agreed.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the unreasonable verdict ground requires an independent assessment of whether a guilty verdict was open on all the evidence, not merely whether individual pieces of evidence contained inconsistencies.
  • Inconsistencies in eyewitness accounts of a fast-moving, chaotic altercation are not, of themselves, sufficient to render a verdict unreasonable, particularly where the inconsistencies were already ventilated before the jury in closing address.
  • Where a conviction is challenged solely on the basis that a single eyewitness was unreliable, that argument weakens considerably when a second independent witness gives consistent identification evidence on the critical point.
  • A jury's assessment of witness credibility, formed after observing witnesses over a lengthy trial, carries significant weight when an appellate court considers the reasonableness of a verdict.
  • The Court confirmed the principles from M v The Queen (1994) 181 CLR 487, as elaborated in Dansie v The Queen [2022] HCA 25, as the governing framework for unreasonable verdict appeals.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 33(1)(a) (wounding with intent to cause grievous bodily harm)
- Criminal Appeal Act 1912 (NSW), s 5(1)

Cases
- Dansie v The Queen [2022] HCA 25; 96 ALJR 728
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12