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Court of Criminal Appeal 29 November 2023

Baines v Rex

[2023] NSWCCA 302

Homicide
CRIME APPEALS APPEAL AGAINST CONVICTION CIRCUMSTANTIAL CASE NO MISDIRECTION ESTABLISHED CRIME APPEALS

Citation: Baines v Rex [2023] NSWCCA 302
Court: NSW Court of Criminal Appeal
Date: 29 November 2023
Judges: Simpson AJA; Dhanji J; McNaughton J

Background

The appellant was convicted by a jury of the murder of a man shot dead in his parked car in Earlwood in November 2016. The Crown case was that the appellant was a passenger in an Audi from which four bullets were fired into the deceased's vehicle, and that he either fired the shots himself or was present and ready and willing to assist, making him liable under joint criminal enterprise.

At trial, the jury sent a note asking whether they needed to be satisfied the appellant was actually inside the Audi, or whether being "in the vicinity" and ready and willing to assist would suffice. The trial judge directed the jury that the Crown's case required the appellant to have been in the Audi, and added that there was no evidence placing him elsewhere in the vicinity. Defence counsel objected to that supplementary direction.

Following conviction, the appellant was sentenced to 36 years' imprisonment with a non-parole period of 27 years. At sentencing, the judge declined to reduce the appellant's moral culpability on account of his background of disadvantage, finding no causal link between that background and the offending. The judge also declined to take into account extracts of the "Bugmy Bar Book," a publication compiled by the NSW Public Defenders that collects research and resource material on the effects of social disadvantage.

  • Whether the trial judge's directions in response to the jury's question gave rise to a miscarriage of justice, particularly the direction that there was no evidence the appellant was anywhere other than inside the Audi.
  • Whether the sentencing judge erred in finding that the appellant's background of disadvantage did not reduce his moral culpability for want of a demonstrated causal link.
  • Whether the sentencing judge erred in expressly disregarding the Bugmy Bar Book material tendered by the defence.

Decision

Conviction appeal (majority: Simpson AJA and McNaughton J; Dhanji J dissenting)

The majority dismissed the conviction appeal. Because the Crown had run its case on the basis that the appellant was inside the Audi, the trial judge was correct to direct the jury that they needed to be so satisfied before convicting. The additional direction that no evidence supported any inference placing the appellant elsewhere in the vicinity was, in the majority's view, an accurate reflection of the evidentiary position and did not work any injustice.

Dhanji J dissented, concluding that the trial judge's supplementary direction was apt to mislead the jury. His Honour reasoned that the direction wrongly suggested a reasonable possibility consistent with innocence could only be considered if there was positive evidence to support it. Provided such a possibility was open on the evidence, it was for the Crown to exclude it beyond reasonable doubt. Dhanji J also held the proviso to s 6 of the Criminal Appeal Act 1912 (NSW) should not be applied, as there was a real danger the misdirection had infected the jury's entire approach to the circumstantial case.

Sentence appeal (unanimous)

All three judges agreed that the sentencing judge erred in refusing to reduce the appellant's moral culpability on account of his background of deprivation. The Court held that a causal link between the deprived background and the offending had been established on the evidence. Citing the High Court's decision in Bugmy v The Queen (2013) 249 CLR 571, the Court confirmed that the Bugmy principles are capable of applying to even the most serious offences, including murder.

On the Bugmy Bar Book, the majority (Simpson AJA and McNaughton J) held that such material may qualify as expert non-opinion evidence capable of assisting a sentencing judge to understand a specific offender's circumstances. However, on the facts, the sentencing judge's treatment of the Bugmy Bar Book had not been shown to have materially affected the sentencing outcome, so that ground of appeal alone would not have justified intervention. Dhanji J took the view that the Bugmy Bar Book was capable of supporting and contextualising the expert psychological evidence specific to the appellant, and that the sentencing judge erred in declining to have regard to it. Regardless of the difference in reasoning on this point, all three judges agreed that resentencing was required, and the appellant's sentence was reduced to 30 years' imprisonment with a non-parole period of 22 years and 6 months.

Orders Made

  • Leave to appeal against conviction granted; conviction appeal dismissed.
  • Leave to appeal against sentence granted; sentence imposed in the Supreme Court on 17 December 2021 quashed.
  • In lieu thereof, the appellant sentenced to imprisonment with a non-parole period of 22 years and 6 months commencing 29 November 2018 and expiring 28 May 2041, and a balance of term of 7 years and 6 months expiring 28 November 2048.

Key Takeaways

  • A sentencing judge is not entitled to decline to find reduced moral culpability solely on the basis that no causal link exists between an offender's background of deprivation and the offending, where such a link is established on the evidence. The Court of Criminal Appeal confirmed that the Bugmy principles apply even to the most serious offences, including murder.
  • Where the Crown advances its case on a specific factual particular (here, that the accused was inside a particular vehicle), a trial judge's direction that the jury must be satisfied of that particular is a correct reflection of how the Crown has run its case.
  • The Bugmy Bar Book, a publication compiled by the NSW Public Defenders drawing on research into the effects of social disadvantage, may qualify as expert non-opinion evidence capable of assisting a sentencing court to understand specific evidence about an individual offender's circumstances and background.
  • A difference in reasoning on the Bugmy Bar Book ground between majority and dissent did not affect the ultimate outcome: all members of the Court agreed resentencing was required once the causal link error on the deprivation ground was established.
  • In dissent, Dhanji J articulated the principle that where a reasonable possibility consistent with innocence is open on the evidence in a circumstantial case, the Crown bears the burden of excluding it beyond reasonable doubt, and a direction suggesting positive evidence is first needed to raise such a possibility risks reversible error.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 7
- Criminal Appeal Act 1912 (NSW), ss 5, 6
- Criminal Procedure Act 1986 (NSW), s 160(2)
- Evidence Act 1995 (NSW), ss 4, 184

Cases:
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Barca v The Queen (1975) 133 CLR 82; [1975] HCA 42
- Johnson v Miller (1937) 59 CLR 467; [1937] HCA 77
- KRM v The Queen (2001) 206 CLR 221; [2001] HCA 11
- Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1
- King v The Queen (1986) 161 CLR 423; [1986] HCA 59
- Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Hamilton v Director of Public Prosecutions (NSW) (2020) 287 A Crim R 268; [2020] NSWSC 1745
- Cawthray v R [2013] NSWCCA 105
- Dean v R [2019] NSWCCA 27
- Edmonds v R [2022] NSWCCA 103
- Kentwell v R (No 2) [2015] NSWCCA 96
- Lang v The Queen [2023] HCA 29
- Honeysett v The Queen (2014) 253 CLR 122; [2014] HCA 29