Citation: R v Mostyn [2004] NSWCCA 97
Court: NSW Court of Criminal Appeal
Date: 15 April 2004
Judge(s): McColl JA, Studdert J, Howie J
Background
The appellant was convicted after a jury trial in the District Court of maliciously inflicting grievous bodily harm on his wife (s 35 Crimes Act 1900) and assaulting her (s 61 Crimes Act 1900). Both offences arose from a chain of incidents on 24 November 2001 at the couple's rural property at Kemps Creek. The relationship had a documented history of violence by the appellant towards the complainant.
Before the jury was empanelled, the appellant also pleaded guilty to a separate charge of using an offensive weapon, specifically a .22 calibre rifle, with intent to prevent his lawful apprehension (s 33B Crimes Act 1900). This charge arose from the final incident in the same sequence of events on the same day.
At first instance, the appellant was sentenced to a total of 6 years and 8 months with an effective non-parole period of 5 years. He appealed both his convictions and the severity of the sentences.
Legal Issues
- Whether the trial judge adequately directed the jury on the elements of assault under s 61, particularly where the alleged threat was made at a distance making physical contact impossible
- Whether the directions on "maliciously" and "recklessly" in relation to the s 35 offence were adequate
- Whether evidence of the appellant's conduct after police arrived was properly admitted, including whether it constituted tendency evidence or was otherwise inadmissible
- Whether the trial judge was required to give a direction along the lines of that in R v Markuleski, warning the jury that doubt about the complainant's evidence on one count should be considered when assessing her evidence on others
- Whether the convictions were unreasonable or unsupported by the evidence
- Whether the overall sentence was manifestly excessive, having regard to the totality principle and the fact that all offences arose from a single criminal episode
Decision
The Court dismissed the appeal against conviction on all grounds. It found no error in the trial judge's directions on assault, noting that an assault can be established where a threat is communicated in circumstances that create reasonable apprehension of immediate unlawful contact, even without actual physical contact. The Court was satisfied that the evidence was sufficient to support both convictions and that no miscarriage of justice had occurred.
On the admissibility ground, the Court found that the contested evidence was not inadmissible tendency evidence but rather formed part of the relevant transaction of events on that day. It was properly admitted as bearing on the appellant's state of mind and the circumstances surrounding the offences.
The Court also rejected the argument that a Markuleski direction was required. A Markuleski direction alerts the jury that if they have a reasonable doubt about a complainant's evidence on one count, they should bring that doubt to bear on their assessment of her evidence generally. The Court found that such a direction was not necessary on the facts of this case and that its absence did not produce any miscarriage of justice.
On sentence, however, the Court found the overall sentencing outcome manifestly excessive. The sentencing judge had not sufficiently applied the totality principle, which requires that the combined effect of sentences for offences forming part of a single criminal enterprise not be disproportionate to the overall criminality involved. The Court also found the degree of concurrency between the individual sentences was inadequate given that all offences arose from one relatively brief episode.
Orders Made
- Appeal against conviction dismissed
- Leave to appeal against severity of sentence granted
- Sentences for the s 35 and s 33B offences quashed and replaced:
- s 35 offence: fixed term of 2 years and 10 months, commencing 22 December 2002 and expiring 21 October 2005
- s 33B offence: 3 years and 3 months, commencing 22 September 2004, with a non-parole period of 1 year and 9 months expiring 21 June 2006
- Sentence for the s 61 offence (10 months) remained unchanged
Key Takeaways
- An assault under s 61 of the Crimes Act 1900 can be established by a threat communicated at a distance, provided it creates a reasonable apprehension of immediate unlawful force; physical proximity enabling actual contact is not a required element.
- Evidence of conduct forming part of a continuous transaction of events is not automatically characterised as tendency evidence and may be admissible on the basis of its relevance to the accused's state of mind and the circumstances of the offences.
- A Markuleski direction, which asks juries to carry reasonable doubt about a complainant's credibility across to other counts, is not required in every multi-count trial; its necessity depends on the particular facts.
- In dismissing the conviction appeal, the Court of Criminal Appeal confirmed that the absence of a Markuleski direction did not produce a miscarriage of justice on these facts.
- Where multiple offences arise from a single, relatively brief episode of criminality, the totality principle requires that the combined sentence reflect the overall gravity of the conduct rather than simply accumulating individual sentences, and inadequate concurrency can render an overall sentence manifestly excessive.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW): ss 33, 33B, 35, 61, 195(a), 428B, 428D(a)
- Criminal Appeal Act 1912 (NSW): s 6
- Criminal Appeal Rules (NSW): r 4
- Evidence Act 1995 (NSW): ss 55, 135, 137
Key Cases:
- R v Markuleski (2001) 52 NSWLR 82
- Pearce v The Queen (1998) 194 CLR 610
- O'Leary v R (1946) 73 CLR 566
- R v Cunningham [1957] 2 QB 396
- Zanker v Vartzokas (1988) 34 A Crim R 11
- Barton v Armstrong [1969] 2 NSWR 451
- Jones v R (1997) 191 CLR 439
- KRM v R (2001) 206 CLR 221
- MFA v R [2002] HCA 53; (2002) 77 ALJR 139
- R v Grant (2002) 55 NSWLR 80
- R v Durocher-Yvon [2003] NSWCCA 299