Citation: R v Esho, R v Sako [2001] NSWCCA 415
Court: NSW Court of Criminal Appeal
Date: 23 October 2001
Judge(s): Spigelman CJ, Simpson J, Smart AJ
Background
The two appellants were among a group of Assyrian men present in a Fairfield car park in the early hours of 18 April 1997, when an off-duty police officer, Constable David Carty, was fatally attacked. Constable Carty was stabbed in the heart and, while on the ground, was punched, kicked, and stomped upon by a number of men in the group.
Both appellants were tried on charges including maliciously inflicting grievous bodily harm with intent under s 33 of the Crimes Act 1900, together with affray. After a four-month trial, the jury acquitted both men of the s 33 charge but convicted each on the alternative offence of malicious infliction of grievous bodily harm under s 35, which does not require proof of intent to cause grievous bodily harm. One appellant was also convicted of affray.
Abadee J sentenced one appellant to six years and eight months imprisonment (non-parole period of five years) for the s 35 offence, with a concurrent two-year fixed term for affray. The other appellant received five years imprisonment (non-parole period of three years and nine months). Both appellants challenged their convictions and sentences on appeal.
Legal Issues
- Whether the convictions under s 35 were unreasonable given the acquittals on the more serious s 33 charges
- Whether the trial judge's directions to the jury were inadequate
- Whether the verdicts were unreasonable and unsupported by the evidence
- Whether the doctrine of joint criminal enterprise was correctly applied
- Whether the concept of "malice" was properly addressed
- Whether admissions relied on by the Crown were sufficiently reliable, having regard to ss 38(1), 38(2) and 192(2) of the Evidence Act 1995
- Whether the identification evidence was adequate
- Whether there was a sentencing disparity between the two appellants and between them and co-accused who had been dealt with separately
- Whether the sentences imposed were manifestly excessive
Decision
The Court of Criminal Appeal dismissed all conviction appeals. Simpson J (with whom Spigelman CJ and Smart AJ agreed) held that an acquittal on the s 33 charge did not render a s 35 conviction unreasonable. The distinction between the two offences is solely the element of intent: a jury that is not satisfied beyond reasonable doubt of intent to cause grievous bodily harm may still convict on the lesser alternative under s 35, as contemplated by s 34 of the Crimes Act.
The court rejected the argument that the s 35 verdicts were inconsistent with the acquittals. The jury was entitled to find that each appellant participated in the attack on Constable Carty as part of a joint criminal enterprise, even without being satisfied of the specific intent required by s 33.
On the question of parity, the court found no error in the sentencing judge's approach. The court observed that evidence sufficient to establish a more serious charge than that on which a jury convicts does not, of itself, mean that the sentencing findings were erroneous or that the sentence was excessive. The accessorial basis of one appellant's liability was properly reflected in the sentencing judge's remarks.
Leave to appeal against sentence was granted in both cases, but the sentence appeals were dismissed. The court found no error in the assessment of criminality and no basis to conclude that either sentence was manifestly excessive.
Orders Made
- Esho: appeal against conviction dismissed; leave to appeal against sentence granted, appeal dismissed.
- Sako: appeal against conviction dismissed; leave to appeal against sentence granted, appeal dismissed.
Key Takeaways
- An acquittal on a charge of maliciously inflicting grievous bodily harm with intent (s 33, Crimes Act 1900) is not necessarily inconsistent with a conviction on the alternative offence of malicious infliction of grievous bodily harm (s 35), since the two offences differ only in the element of intent.
- Under the doctrine of joint criminal enterprise, a participant in a group attack may be convicted on the basis of accessorial liability for the acts carried out by others in furtherance of the common enterprise.
- Sufficient evidence to support a more serious charge than that on which the jury convicts does not, by itself, undermine the validity of the lesser conviction or demonstrate error in the sentencing process.
- In dismissing the parity ground, the Court of Criminal Appeal confirmed that accessorial liability does not preclude a finding that the offender was meaningfully "involved in" the relevant conduct for sentencing purposes.
- No error was established in the trial judge's jury directions, treatment of admissions, identification evidence, or assessment of sentence, across either appeal.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 33, 34, 35, 93C(1)
- Evidence Act 1995 (NSW), ss 38(1), 38(2), 192(2)
Cases:
- R v Richard Adam [1999] NSWCCA 189; 106 A Crim R 510
- Gilbert Adam [1999] NSWCCA 197; 47 NSWLR 267
- Osland v R [1998] HCA 75; 197 CLR 316
- R v Jones (1997) 191 CLR 439
- McKenzie v R (1996) 190 CLR 348
- R v MacKenzie (1995) 82 A Crim R 473
- R v Smith [1982] 1 NSWLR 1
- R v Safwan (1986) 8 NSWLR 97
- R v Mowatt [1968] 1 QB 421
- R v Coleman (1990) 19 NSWLR 476
- R v Mraz (1955) 93 CLR 493
- R v Stanoevski [2001] HCA 4; 75 ALJR 454
- R v Fowler [2000] NSWCCA 142
- M v R (1994) 181 CLR 487
- R v Zoneff [2000] HCA 28; 112 A Crim R 114
- R v Edwards (1999) 178 CLR 193
- Domican v R (1990) 173 CLR 555
- R v De Simoni (1981) 147 CLR 383