Ewan v R

Case [2020] NSWCCA 85 6 May 2020

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Ewan v R [2020] NSWCCA 85
Hearing dates: 4 March 2020
Date of orders: 06 May 2020
Decision date: 06 May 2020
Before: Macfarlan JA at [1];
R A Hulme J at [94];
Button J at [95]
Decision:
(1) Grant leave to appeal.
(2) Allow the appeal.
(3) Quash the applicant’s conviction on the accessory after the fact charge and order a new trial.
(4) Quash the aggregate sentence imposed in the District Court on 12 April 2019 in respect of the charge of accessory after the fact and the offences charged in sequences 3, 4 and 6.
(5) In respect of his convictions on the offences charged in sequences 3, 4 and 6, and in substitution for the sentence for those offences referred to in Order (4) above, sentence Stephen Geoffrey Ewan to an aggregate period of imprisonment of 6 months to be served by way of an Intensive Correction Order commencing on 12 April 2019 and expiring on 11 October 2019.
(6) Specify 6 months imprisonment as the indicative sentence in respect of each of these offences.
(7) The Intensive Correction Order referred to in Order 5 above is subject to the following conditions:
(a) The offender must not commit any offence.
(b) The offender must submit to supervision by a Community Corrections Officer.
(8) Note that the sentence imposed on the applicant on 12 April 2019 in respect of the offence charged in sequence 1 is unaffected by these orders.
(9) List the matter for mention in the District Court at Sydney at 9:30am on 22 May 2020.

Catchwords:
CRIME – accessory after the fact to a serious indictable offence – trial judge instructed jury that it was sufficient for the Crown to prove only one of the three acts of assistance alleged – whether a specific unanimity direction was required – different jurors may have taken different paths to their conclusions of guilt – substantial miscarriage of justice

CRIME – alleged lies relied on by Crown as both evidence of consciousness of guilt and as constituting assistance of the principal offender – no inconsistency – Edwards directions properly given – r 4 Criminal Appeal Rules

CRIME – unreasonable verdict – open to the jury to convict on the evidence before it
SENTENCING – aggregate sentence quashed – whether court can resentence applicant in respect of other offences covered by the aggregate sentence and of which the applicant was properly convicted – ICO may effectively be backdated – s 7(1) Criminal Appeal Act
Legislation Cited: Crimes (Domestic and Personal Violence) Act 2007 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Crimes Act 1900 (NSW)
Criminal Appeal Act 1912 (NSW)
Criminal Appeal Rules (NSW)
Criminal Procedure Act 1986 (NSW)
Evidence Act 1995 (NSW)
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)
Cases Cited: Blanch v R [2019] NSWCCA 304
Castagna v The Queen [2019] NSWCCA 114
Chiro v The Queen (2017) 260 CLR 425; [2017] HCA…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ewan v R

Details

AGLC: Ewan v The Queen [2020] NSWCCA 85
Case: [2020] NSWCCA 85
Decision Date: 06 May 2020

CaseChat Overview and Summary

In the case of Ewan v R, the appellant was convicted of being an accessory after the fact to a serious indictable offence. The central issue before the court was whether the trial judge erred in not directing the jury that it was necessary for them to unanimously agree on which of the three acts of assistance alleged was committed by the appellant before returning a verdict of guilty. The appellant argued that the failure to give such a direction resulted in a substantial miscarriage of justice. The court held that while there was a failure to give the direction, the error did not lead to a substantial miscarriage of justice as the jury's verdict could have been reached on any one of the three acts of assistance, and the evidence was sufficient to support a conviction on any one of those acts.

Further, the court addressed the issue of whether the trial judge erred in admitting evidence of alleged lies told by the appellant. The Crown argued that these lies were evidence of the appellant's consciousness of guilt and also constituted assistance to the principal offender. The court found that there was no inconsistency in the evidence and that the trial judge had properly directed the jury in accordance with Edwards v The Queen. The court held that the trial judge's directions were appropriate and did not constitute an error of law.

The court also considered whether the jury's verdict was unreasonable. The appellant argued that the evidence was insufficient to support a conviction. However, the court found that the evidence was sufficient to allow the jury to convict the appellant and that it was open to the jury to convict on the evidence before it. Finally, the court addressed the issue of sentencing, holding that the aggregate sentence was quashed and that the court could resentence the appellant in respect of other offences covered by the aggregate sentence. The court held that the intra-custody offset could effectively be backdated in accordance with section 7(1) of the Criminal Appeal Act.

Orders