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Court of Criminal Appeal 6 September 2024

AKB v R

[2024] NSWCCA 169

Homicide
CRIME A PPEALS APPEAL AGAINST CONVICTION MURDER DEATH BY THERMAL INJURY EXTENT TO WHICH JURY UNANIMITY REQUIRED

Citation: AKB v R [2024] NSWCCA 169
Court: New South Wales Court of Criminal Appeal
Date: 6 September 2024
Judge(s): Gleeson JA; Walton J; Dhanji J

Background

In the early hours of 18 October 2016, a woman died in her bedroom from thermal injuries caused by a fire at a residential property in Guildford, NSW. Her husband was charged with her murder under s 18(1)(a) of the Crimes Act 1900 (NSW). After a 15-day jury trial in the Supreme Court, he was convicted and sentenced to 36 years' imprisonment with a non-parole period of 27 years.

The Crown ran its case on two alternative bases as to the act that caused the deceased's death. The principal case was that the applicant physically prevented the deceased from escaping the burning bedroom. The alternative case was that the applicant had placed petrol in the bedroom or ignited the fire. The evidence supporting the principal case included testimony from the couple's two young sons, one of whom described seeing the applicant push the deceased back into the bedroom and hold the door shut.

The applicant sought leave to appeal against conviction on a single ground: that the trial judge failed to direct the jury it had to be unanimous as to which specific act caused the death, not merely unanimous as to the verdict of guilty.

  • Whether the trial judge erred by failing to give an "extended unanimity" direction, requiring the jury to be unanimous as to the specific act (or actus reus) constituting the offence, not only as to the ultimate verdict.
  • Whether the absence of any objection or redirection request at trial was relevant to the grant of leave under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW).
  • Whether, on the particular structure of the Crown's case as presented to the jury, the two alternative bases were sufficiently discrete to require a specific unanimity direction on each.

Decision

The Court of Criminal Appeal unanimously dismissed the appeal, finding that the unanimity direction actually given to the jury was adequate in the circumstances of this case.

Gleeson JA, delivering the principal judgment, distinguished the present case from authorities where extended unanimity directions have been required. In cases such as Lane v The Queen (2018) 265 CLR 196, multiple potential causes could each independently satisfy a distinct element of the offence, with different issues of proof and potentially different defences applying to each. Here, by contrast, the deceased died from thermal injury caused by one fire. The Crown's two alternative cases both pointed to the applicant as having caused that same death with the same murderous intent. There were no different mental states, no different defences, and no mutually exclusive factual pathways.

The Court rejected the Crown's alternative argument that jurors could have "pooled" their conclusions across the two alternative cases, noting that this was not how the Crown had actually put its case at trial. The summing-up directed the jury to consider the alternatives sequentially, not cumulatively, and it would have been erroneous to recharacterise the prosecution case after the fact. Because the Crown's two alternatives were not mutually destructive and the applicant faced no unfairness in meeting the case as presented, no extended unanimity direction was required.

The Court also noted that defence counsel raised no objection to the unanimity direction at trial, which it regarded as a meaningful indicator that no real unfairness had arisen. Leave to raise the ground on appeal was nonetheless granted because the issue was at least arguable and was not trivial. An extension of time of almost five years was also granted, the lengthy delay having been sufficiently explained.

Orders Made

• Grant leave to appeal, including an extension

Key Takeaways

  • An extended jury unanimity direction (requiring unanimity as to the specific act constituting the offence, not just the verdict) is not invariably required where the Crown runs alternative cases on actus reus. The need for such a direction depends on whether the alternative bases raise distinct issues of proof, different defences, or mutually exclusive factual conclusions.
  • Where the Crown's alternative pathways to a guilty verdict share the same alleged purpose, the same mental state, and no conflicting defences, a standard unanimity direction will ordinarily suffice.
  • A court will not permit the Crown on appeal to recharacterise its trial case as a "continuous course of conduct" permitting jurors to pool conclusions across alternatives, where the summing-up presented those alternatives as sequential and mutually exclusive.
  • The Court of Criminal Appeal confirmed that the test articulated in authorities such as R v McCarthy (2015) 124 SASR 190 for when an extended unanimity direction is required turns on whether the alternative bases are "mutually destructive," not simply whether they are factually distinct.
  • In dismissing the appeal, the Court observed that the absence of any defence objection to the unanimity direction at trial was a relevant (though not conclusive) indicator that no unfairness had been perceived by those best placed to assess it.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 18
- Criminal Appeal Act 1912 (NSW), s 5(1)(a)
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15
- Court Suppression and Non-Publication Orders Act 2010 (NSW), ss 7, 8(1)(e)
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A

Cases
- Lane v The Queen (2018) 265 CLR 196; [2018] HCA 28
- Hamilton (a pseudonym) v The Queen [2021] HCA 33; (2021) 290 A Crim R 570
- R v McCarthy (2015) 124 SASR 190; [2015] SASCFC 177
- Question of Law Reserved No 1 of 2022 [2023] SASCA 109
- R v Heaney (2009) 22 VR 164
- R v Klamo (2008) 18 VR 64; [2008] VSCA 84
- Ribbon v The Queen (2019) 134 SASR 328; [2019] SASCFC 130
- Country Care Group Pty Ltd v Director of Public Prosecutions (Cth) (2020) 275 FCR 342; [2020] FCAFC 30
- Fermanis v The State of Western Australia (2007) 33 WAR 434; [2007] WASCA 84
- Chapman v The Queen [2013] NSWCCA 91; (2013) 232 A Crim R 500
- Lane v R (2013) 241 A Crim R 321; [2013] NSWCCA 317
- Lane v R [2017] NSWCCA 46
- Magnus v R (2013) 41 VR 612; [2013] VSCA 163
- R v Cramp [1999] NSWCCA 324; (1999) 110 A Crim R 198
- Pratten v R [2014] NSWCCA 117
- R v AKB (No 8) [2018] NSWSC 1628
- R v Brown (1984) 79 Cr App R 115
- R v Boreman [2000] 1 All ER 307
- R v Mead [2002] 1 NZLR 594
- Johnson v Miller (1937) 59 CLR 467; [1937] HCA 77