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2
Court of Criminal Appeal 2 December 2024

Soars v R

[2024] NSWCCA 218

Assault & violence
CRIME APPEALS APPEAL AGAINST CONVICTION MISCARRIAGE OF JUSTICE APPEALS APPEAL AGAINST CONVICTION

Citation: Soars v R [2024] NSWCCA 218
Court: NSW Court of Criminal Appeal
Date: 2 December 2024
Judges: Bell CJ, Wright J, Chen J

Background

The applicant was convicted in the District Court in July 2022 of causing grievous bodily harm with intent, contrary to s 33(1)(b) of the Crimes Act 1900 (NSW). The offence arose from a late-night attack on 31 March 2021 in East Maitland, in which the victim, a stranger to the applicant, was struck with nunchucks as he walked home from a local hotel.

At the time of the attack, the applicant was living with his brother (Lyndon), his mother, and his nephew at a property in Anne Street, East Maitland. The Crown case was largely circumstantial. Key pieces of evidence included nunchucks found in the applicant's bedroom bearing his DNA and the victim's DNA, the victim's mobile phone also found in that bedroom, eyewitness descriptions consistent with the applicant's appearance, and the applicant driving to Queensland shortly after 10.30pm on the night of the attack.

The applicant's case at trial was that the Crown had not excluded the possibility that Lyndon, or the unidentified third person whose DNA also appeared on the nunchucks, committed the attack. The applicant was sentenced in October 2023 to nine years' imprisonment with a non-parole period of six and a half years. He sought leave to appeal against both conviction and sentence.

  • Whether the trial judge erred by refusing to warn the jury, under s 165(1)(d) of the Evidence Act 1995 (NSW), about the potential unreliability of Lyndon's evidence on the basis that he might reasonably be supposed to have been criminally concerned in the events
  • Whether the conviction was unreasonable or not supported by the evidence, given the possibility that someone other than the applicant (particularly Lyndon or the unidentified DNA contributor) committed the attack
  • Whether the sentence of nine years' imprisonment was manifestly excessive

Decision

Ground 1: Section 165 warning

Section 165(1)(d) of the Evidence Act requires a warning where evidence is of a kind that may be unreliable because it was given by a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding. The Court held that, on all of the evidence, it was open to the trial judge to conclude that Lyndon did not fall within that description. Crucially, the mere fact that defence counsel had suggested Lyndon was the perpetrator did not bring him within the category of person to whom the provision applies. The Court also found no risk that the jury would overestimate the weight of Lyndon's evidence.

Ground 2: Unreasonable verdict

The Court noted, by way of observation, that counsel raising unreasonable verdict grounds must do more than assert the verdict was unreasonable: they must articulate specific reasons why the verdict was not open to the jury. On the merits, the Court was satisfied that, considering the entirety of the circumstantial evidence, it was well open to the jury to be satisfied beyond reasonable doubt of the applicant's guilt. There was no reasonable possibility that Lyndon or any other person was responsible for the attack.

Ground 3: Manifest excess in sentence

The offence carried a maximum penalty of 25 years and a standard non-parole period of seven years. The sentencing judge found the offending fell in the upper end of the mid-range of objective seriousness and identified statutory aggravating factors. While the sentence was towards the sterner end of available options, the Court of Criminal Appeal found it neither unreasonable nor plainly unjust, and not crushing in the circumstances. Leave to appeal against sentence was refused.

Orders Made

  • Leave to appeal granted in respect of ground 1 of the draft Notice of Appeal
  • Appeal on ground 1 dismissed
  • Leave to appeal refused in all other respects

Key Takeaways

  • Under s 165(1)(d) of the Evidence Act 1995 (NSW), a trial judge is not required to warn the jury about a witness's potential unreliability merely because defence counsel has identified that witness as a possible perpetrator; the statutory test requires that the witness might reasonably be supposed to have been criminally concerned in the events, assessed against all of the evidence.
  • In dismissing the unreasonable verdict ground, the Court of Criminal Appeal confirmed that a conviction resting on a large body of circumstantial evidence can be properly open to the jury even where the defence raises alternative perpetrators, provided the overall evidence excludes any reasonable possibility of another person being responsible.
  • The Court observed that counsel advancing unreasonable verdict grounds must articulate precise arguments about why the verdict was not open, rather than simply asserting that conclusion.
  • A nine-year sentence for a serious, unprovoked attack causing life-threatening injuries was upheld as within range, notwithstanding that the sentencing judge found no causal link between the applicant's mental health and the offending and gave greater weight to community protection.
  • Where a sentence is stern but not crushing, and all objective and subjective factors are properly weighed, no error warranting appellate intervention is established.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW) s 33(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW) s 54A(2)
- Criminal Appeal Act 1912 (NSW) s 6(1)
- Evidence Act 1995 (NSW) s 165

Cases
- Blair v The Queen [2022] NSWCCA 176
- Dansie v The Queen (2022) 274 CLR 651
- DL v R [2020] NSWCCA 164
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1
- Du Plessis v R [2024] NSWCCA 164
- Elias v R; Issa v The Queen (2013) 248 CLR 483
- GAR v R (No 2) [2010] NSWCCA 164
- Jackson v R [2020] NSWCCA 230
- JM v R [2014] NSWCCA 297
- Kaddour v R [2019] NSWCCA 90
- M v The Queen (1994) 181 CLR 487
- Markarian v The Queen (2005) 228 CLR 357
- MFA v The Queen (2002) 213 CLR 606
- Obeid v R (2017) 96 NSWLR 155
- Pell v The Queen (2020) 268 CLR 123
- Quinn v R [2023] NSWCCA 229
- R v Baartman [2000] NSWCCA 298
- R v Clark [2001] NSWCCA 494
- Stewart v R (2001) 52 NSWLR 301