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Court of Criminal Appeal 21 April 2023

AW v R

[2023] NSWCCA 92

Assault & violence
CRIME APPEALS APPEAL AGAINST CONVICTION APPEALS APPEAL AGAINST CONVICTION WHETHER APPROPRIATE TO RE

Citation: AW v R [2023] NSWCCA 92
Court: NSW Court of Criminal Appeal
Date: 21 April 2023
Judge(s): Mitchelmore JA (with Davies J and Hamill J agreeing)

Background

The appellant was tried before a judge and jury in the District Court on a ten-count indictment arising from alleged acts of violence against his young children and stepchildren between 2014 and 2018. He was convicted on five counts, including one count of recklessly inflicting grievous bodily harm (Count 2) and one count of causing grievous bodily harm with intent (Count 1, which the jury ultimately did not proceed upon given the alternative verdict on Count 2). He was also convicted of one count of common assault and three counts of assault occasioning actual bodily harm.

Count 2 concerned an incident in January 2014 involving the appellant's five-year-old stepdaughter. The Crown alleged the appellant lifted her above his head and slammed her onto the ground in the hallway of their home, breaking her arm. The appellant denied the incident occurred at all.

The appellant was sentenced to an aggregate term of 3 years and 9 months' imprisonment, with a non-parole period of 2 years and 3 months. The indicative sentence for Count 2 was 2 years and 6 months. He sought leave to appeal his conviction on Count 2, raising a single ground: that the trial judge misdirected the jury on the mental element of recklessness.

  • Whether the trial judge misdirected the jury on the mental element of recklessness for the offence under s 35(2) of the Crimes Act 1900 (NSW).
  • Whether any misdirection caused a miscarriage of justice within the meaning of s 6(1) of the Criminal Appeal Act 1912 (NSW).
  • Whether the proviso to s 6(1) should be applied to dismiss the appeal despite any miscarriage of justice found.
  • Whether, upon a successful conviction appeal, the Court of Criminal Appeal should re-sentence on the undisturbed counts itself, or remit the matter to the District Court for re-sentencing.

Decision

The Court granted leave and allowed the appeal. The Crown conceded there had been misdirections, but disputed whether they caused a miscarriage of justice or, alternatively, argued the proviso should apply. Mitchelmore JA (with Davies and Hamill JJ agreeing) rejected both arguments.

The trial judge gave several inconsistent directions on recklessness, some in writing for the jury's deliberations. Two directions were unfavourable to the appellant. One described recklessness by reference to foresight of violence "however slight," which corresponds to a degree of harm well below what s 35(2) requires. Another correct but more favourable misdirection referred to foresight of grievous bodily harm, which set the bar higher than the statute demands. The cumulative effect was that the jury was never properly directed on the correct mental element: foresight of the possibility of actual bodily harm. The Court found the directions were productive of uncertainty, if not confusion, and could have affected the outcome.

On the miscarriage of justice question, the Court confirmed that the inquiry under s 6(1) is separate from the inquiry as to whether there has been a "substantial miscarriage of justice" under the proviso. The Court applied the principle from Hofer v The Queen and Edwards v The Queen and found the misdirections constituted a departure from a trial according to law that was prejudicial to the appellant. Because the jury was never properly directed on a core element of the offence, the Court declined to apply the proviso. Notwithstanding its own assessment of the evidence, it was not appropriate to substitute its view for that of a properly directed jury.

On the re-sentencing question, the Court declined to re-sentence itself on the undisturbed convictions. The close relationship between those counts and Count 2 (including another count involving the same victim), combined with the need for a retrial, made remittal to the District Court the more appropriate course.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Conviction on Count 2 quashed.
  • New trial ordered on Counts 2 and 3.
  • Aggregate sentence imposed in the District Court on 21 May 2021 quashed.
  • Undisturbed convictions on Counts 4, 5, 6, and 8 remitted to the District Court for re-sentencing.
  • Matter listed in the District Court Country Call-Over on 26 April 2023 to obtain a trial date before the District Court in Nowra.

Key Takeaways

  • A misdirection on the mental element of recklessness under s 35(2) of the Crimes Act 1900 (NSW) constituted a miscarriage of justice where the jury had inconsistent and incorrect written directions and was never properly directed on what the Crown actually needed to prove.
  • The inquiry into whether there has been a "miscarriage of justice" under s 6(1) of the Criminal Appeal Act 1912 (NSW) and the inquiry into whether there has been a "substantial miscarriage of justice" for the purposes of the proviso are separate and discrete questions, not to be conflated.
  • Where at least two misdirections significantly departed from the correct statement of a core element of the offence, the Court of Criminal Appeal found it inappropriate to apply the proviso, regardless of its own view of the strength of the evidence.
  • Applying Lane v The Queen (2018) 265 CLR 196, the proviso was unavailable in circumstances where it could not be established that the jury understood the mental element it was required to assess.
  • Remittal for re-sentencing, rather than re-sentencing by the Court of Criminal Appeal, was the appropriate disposition where undisturbed counts were closely related to a count requiring a retrial and involved the same victim.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 33, 35
- Crimes Amendment (Reckless Infliction of Harm) Act 2012 (NSW)
- Criminal Appeal Act 1912 (NSW), ss 6, 7, 12
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15

Cases:
- Hofer v The Queen (2021) 95 ALJR 937; [2021] HCA 36
- Edwards v The Queen (2021) 393 ALR 368; [2021] HCA 28
- Lane v The Queen (2018) 265 CLR 196; [2018] HCA 28
- Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7
- Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81
- Morrison v R [2022] NSWCCA 158
- Ewan v R [2020] NSWCCA 85
- Baxter v R [2018] NSWCCA 281
- BC v R (No 2) [2019] NSWCCA 142
- Allen v R [2020] NSWCCA 173
- Watson v R [2020] NSWCCA 215
- Salgado v R [2022] NSWCCA 58
- AK v R [2022] NSWCCA 175
- Blackwell v R (2011) 81 NSWLR 119; [2011] NSWCCA 93