Malicki v The Queen; R v Malicki

[2015] NSWCCA 162

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Malicki v R; R v Malicki [2015] NSWCCA 162

Hearing dates:

13 May 2015; last written submissions 22 May 2015

Decision date:

25 June 2015

Before:

Leeming JA at [1]; 
Johnson J at [74];
Beech-Jones J at [75]

Decision:

In the appeal against conviction:

1. Refuse leave in respect of grounds 1 and 2.

2. Appeal dismissed.

In the Crown appeal:

1. Appeal dismissed.

Catchwords:

CRIMINAL LAW - appeal against conviction - appellant convicted of causing injury to a person believed to be a witness in judicial proceedings - Crimes Act 1900 (NSW), s 326(2) - trial judge misdirected jury as to elements of offence - counsel made no objection during trial - misdirection favourable to accused - no miscarriage of justice - appeal dismissed

CRIMINAL LAW - Crown appeal against sentence - Crown abandoned reliance on much of the criminal conduct - no error in sentencing on basis put to sentencing judge by the Crown - no tailoring of sentence - sentence not an “affront to justice” or “plainly unjust” - Crown appeal dismissed

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW), s 7, Part 5
Crimes Act 1900 (NSW), s 326
Criminal Appeal Act 1912 (NSW), ss 5, 5D, 6
Criminal Legislation Amendment Act 1995 (NSW)
Criminal Appeal Rules, r 4

Cases Cited:

Gordon v R [2009] NSWCCA 72
Kural v The Queen (1987) 162 CLR 502
Linney v R [2013] NSWCCA 251
Marinellis v R [2006] NSWCCA 307
Panchal v R; R v Panchal [2014] NSWCCA 275
Polley v Johnson [2014] NSWSC 1191
R v Cahill [2015] NSWCCA 53
R v Harris [2015] NSWCCA 81
R v Lansdell (Court of Criminal Appeal (NSW), Gleeson CJ, Finlay and Simpson JJ, 22 May 1995, unrep)
R v Linney [2012] NSWSC 1564
R v Schaffer [2005] NSWCCA 193; 153 A Crim R 372
SKA v The Queen [2011] HCA 13; 243 CLR 400

Category:

Principal judgment

Parties:

Carla Hendrina Malicki (Appellant/Cross-respondent)
Crown (Respondent/Cross-appellant)

Representation:

Counsel:
G P Craddock SC (Appellant/Cross-respondent)
N Williams (Respondent/Cross-appellant)

Solicitors:
Toomey Defence Lawyers (Appellant/Cross-respondent)
Solicitor for Public Prosecutions (Respondent/Cross-appellant)

File Number(s):

2011/349161

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Date of Decision:

19 February 2013

Before:

Jeffreys DCJ

File Number(s):

2011/349161

Judgment

1. LEEMING JA: Ms Carla Hendrina Malicki pleaded not guilty to one charge of causing injury to Mr Michael Lees because she believed that he would be called as a witness in judicial proceedings, contrary to s 326(2) of the Crimes Act 1900 (NSW). After a nine day trial, a jury returned a guilty verdict, on 19 February 2013. The maximum penalty was 10 years’ imprisonment. A sentence was not imposed until 9 May 2014. The sentence imposed was one of imprisonment for 20 months, to be served by way of an Intensive Correction Order pursuant to s 7 and Part 5 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

2. The Crown appealed, promptly, by notice of appeal filed 30 May 2014, pursuant to s 5D(1) of the Criminal Appeal Act 1912 (NSW), on the ground that the sentence was manifestly inadequate. By notice of appeal filed 9 February 2015, more than eight months later, and almost two years after the jury’s verdict, Ms Malicki appealed against her conviction pursuant to s 5(1)(a). Both appeals were heard together. The Court was told, without objection, that the delay in the hearing of the Crown appeal was attributable to the appeal against conviction. The consequence is that Ms Malicki has served more than half of the sentence imposed.

Appeal against conviction

3. The grounds of the appeal against conviction are:

1. The trial judge misdirected the jury with respect to the elements of count 1.

2. The trial judge misdirected the jury in response to its question concerning the interplay of joint criminal enterprise and self-defence.

3. The trial judge failed to direct the jury in response to its question concerning inability to agree as to three elements of count 1.

4. Given the narrowness of Ms Malicki’s appeal against conviction, which is confined to three aspects of the directions to the jury, the following highly abbreviated summary of the trial will suffice.

Overview of the trial

5. On 31 October 2011, Mr Michael Lees attended the Supreme Court of New South Wales, sitting in King Street Court 5, as a witness for the Crown in proceedings for murder against Mr Michael Widmer and another co-accused. Michael Widmer is the brother of Aaron Widmer, who was the co-offender in these proceedings and Ms Malicki’s partner. The King Street Courts are located on the south eastern corner of King Street and Elizabeth Street in central Sydney.

6. Ms Malicki and Mr Aaron Widmer were at a café on the western side of Elizabeth Street on the morning of 31 October 2011. Mr Lees crossed the street and paused nearby the pair and was noticed by them. Ms Malicki said that she had met Mr Lees previously. Mr Widmer walked away from the café and Ms Malicki approached Mr Lees. There was a dispute about what they said, although it was common ground that they spoke about obtaining (a) some Xanax, and (b) a sexual service. Closed circuit television footage tendered at trial showed that the pair walked into Westfield shopping centre, seeking a more secluded place. Mr Lees said that he thought he could buy some drugs from Ms Malicki; Ms Malicki’s evidence was that “I wanted to score some drugs” from Mr Lees. Mr Aaron Widmer followed them from a distance. Two of the CCTV images appear to show Mr Widmer hiding behind a pillar in the shopping centre watching Ms Malicki and Mr Lees walking together.

7. Near some lifts in the shopping centre, Mr Lees was confronted by Mr Widmer. He abused him verbally. Mr Lees said that he said, “Oh you dog cunt, you wired up on my brother. You are going to testify against him”. Ms Malicki denied this. She said that Mr Widmer abused Mr Lees verbally for “putting it on my missus”, a reference to the sexual service she said he had sought (and which Mr Lees denied). In her evidence in chief, Ms Malicki denied being aware that Mr Lees was a witness in the trial of Michael Widmer.

8. Mr Widmer pushed Mr Lees against the wall and hit him. A fight ensued between Mr Lees and Mr Widmer. When it appeared that Mr Lees was getting the better of Mr Widmer, Ms Malicki herself hit Mr Lees.

9. A passer-by called security guards who told the three to break it up or security would be called. Mr Lees was taken to hospital with facial injuries to his left temple and left eye, cuts to his finger and lumps on his head. Most of his injuries were inflicted by Mr Widmer.

10. Precisely how and the extent to which Ms Malicki assaulted Mr Lees was disputed. Mr Lees said he was hit about seven times to the back left side of his head and left side of his neck with a bag, which, he said “felt like it had rocks in it”. He also said that he heard Mr Widmer say to Ms Malicki “[g]et a knife”. Ms Malicki denied hearing Mr Widmer say “[g]et a knife” and denied ever carrying a knife.

11. Ms Malicki said that she wasn’t sure whether she had a plastic bag on her arm at the time, but in any event denied hitting Mr Lees with a bag. She accepted that she hit Mr Lees with her fist. Ms Malicki said that “I just instantly hit Michael Lees with my fists twice”.

12. She said in cross-examination:

“Q. But Mr Lees was defending himself wasn’t he?

A. Mr – he first was defending himself because Aaron hit him first four times, but then he hit Aaron and got it over Aaron and continuously [hit] him and that’s where I feared for Aaron’s safety and I didn’t even think about it, I automatically hit him twice, so, with my fist.

Q. In the head?

A. In the back of the head. I was on his right side.”

13. Ms Malicki also ultimately accepted that she knew that Mr Lees was a police informant who was giving evidence. She gave this evidence in cross-examination:

“Q. See, by this stage, you knew, didn’t you, that Mr Lees was going to give evidence in that murder case? You knew that didn’t you?

A. I knew that at the altercation when I – I found out definitely when I was walking with Mr Lees through Westfield.”

14. Mr Lees had used cannabis for some 30 years, and said that he had last used it about a week before. He had also been prescribed Valium, Zyprexa and morphine prior to 2011. He accepted in evidence in chief that “[my] memory’s been not good for the last ten years or so”. He said in cross-examination that “I’m illiterate, I can’t read properly, I’m dyslexic”.

The Crown’s joint criminal enterprise case

15. It is necessary to turn to an issue that is prominent in both appeals: the nature of the joint criminal enterprise alleged by the Crown. The Crown initially alleged a joint criminal enterprise whereby Ms Malicki lured Mr Lees into a secluded area so that he could be assaulted by her partner Mr Widmer, both doing so because they believed he was giving evidence against Michael Widmer. However, it seems that by the time the judge instructed the jury, the Crown case on joint criminal enterprise was narrower. As will be seen below, it was unequivocally abandoned altogether by a different advocate appearing at the sentencing hearing. For that reason, it will not be necessary in these reasons to analyse all aspects of how it was put during the trial.

16. Relevantly for present purposes, the Crown case was opened to the jury as follows:

“What we have to prove is the accused caused an injury to Mr Lees. What the Crown has to prove is, on account of Mr Lees’ doing a lawful act which is being called as a witness in that murder case I told you briefly about earlier today.

...

The case alleged against the accused is that Mr Lees was assaulted by the accused and Mr Aaron Widmer in the Westfield Shopping Centre in between Pitt Street and Castlereagh Street on 31 October 2011. What the Crown alleges is the accused was a participant in something called a joint criminal enterprise. His Honour will tell you about that at the end of the trial. So both of them together, acting together, took part in this assault on Mr Lees knowing he was going to be called as a witness in this murder case. So the Crown case is that the accused actually herself attacked Mr Lees with a handbag and she was present while Mr Aaron Widmer punched and wrestled with Mr Lees.”

17. In closing address, the trial advocate said:

“In relation to count 1 I’m just briefly going to go over this because his Honour’s going to give you detailed directions about this. This is just to assist you as I am telling you how we say the case has been proved beyond a reasonable doubt. The Crown has to prove the accused caused an injury to Michael Lees. The accused believed that Michael Lees would be called as a witness in judicial proceedings. The Crown also has to negate that the accused was acting in self defence of Mr Aaron Widmer because that’s what she said in evidence. So that’s the first count. Those are the essential elements.”

18. It will be seen that both when opening the case and when addressing the jury at the conclusion of the trial, the trial advocate referred to the directions which would be given by the primary judge. By the end of the trial, those directions had been the subject of debate, in the absence of the jury, between the judge and prosecution and defence.

The judge’s directions to the jury

19. On the eighth day of the trial, after the evidence had closed but before addresses, there was discussion in the absence of the jury concerning a document identifying the elements in both counts in the indictment. This document is central to the appeal against conviction. The document appears to have been drafted by the trial judge (his Honour told the jury that he had done so: see transcript of the summing up, p 13). It became MFI 10. It was relevantly in the following terms:

“Elements of Counts in the Indictment

Count 1. On 31 October 2011, at Sydney, in the State of New South Wales, did cause injury to Michael Lees, because Carla Hendrina Malicki believed that the said Michael Lees would be called as a witness in judicial proceedings

The Crown must satisfy you beyond reasonable doubt that the accused ‑

1. did cause

2. injury to Michael Lees

3. because

4. the accused “believed that Michael Lees would be called as a witness in judicial proceedings

5. and at the time the accused was not acting in self defence

1. did cause

“did cause”

To prove that the act of the accused “did cause” something, the Crown must prove that the accused struck Michael Lees as the Crown alleges, and that this substantially contributed to the injuries suffered by Michael Lees

2. injury to Michael Lees

“injury”

Any injury to Michael Lees is sufficient

3. because

“because”

The Crown must prove that the only reason for striking Michael Lees was the belief of the accused referred to in element 4.

4. the accused “believed” that Michael Lees would be called as a witness in “judicial proceedings”

The Crown must prove that the accused herself believed that Michael Lees would be called as a witness in “judicial proceedings”.

“judicial proceedings” means a proceeding in or before a “judicial tribunal” in which evidence may be taken on oath.

“judicial tribunal” means a court including the Supreme Court of New South Wales.

5. and at the time the accused was not acting in self defence

“self-defence”

Although “self-defence” is referred to as a defence, it is for the Crown to eliminate it as an issue by proving beyond reasonable doubt that the striking by the accused was not done by the accused in self-defence. It may do this by proving beyond reasonable doubt either:

1. That the accused did not believe at the time of the striking that it was necessary to do what she did in order to defend Aaron Widmer.

or

2. The striking by the accused was not a reasonable response in the circumstances as she perceived them.”

20. The document was provided to the Bar table in the absence of the jury and before the trial had concluded. There is no suggestion that the prosecutor or the defence counsel had insufficient time to consider its terms. The prosecutor drew attention to the first element, which confined the Crown case to proving that Ms Malicki struck Mr Lees and substantially contributed to his injuries. The prosecutor said to the judge that when directing the jury about joint criminal enterprise “you were going to say Michael Lees was struck by either the accused or Aaron Widmer or both, because that’s been the Crown case from the start. I understand why your Honour has done it, this is part of the charge, it’s the indictment”. His Honour confirmed that “I’ll be telling the jury about joint criminal enterprise”. The matter was taken no further.

21. MFI 10 confines the first element of the case to proving that Ms Malicki struck Mr Lees. This is inconsistent with a joint criminal enterprise in which Ms Malicki’s involvement was confined to luring Mr Lees to a secluded place.

22. MFI 10 also required the Crown to prove that the only reason for Ms Malicki striking Mr Lees was her belief that he would be called as a witness. Seemingly, because the document proceeded on the basis that the Crown had to establish that the sole reason for Ms Malicki striking Mr Lees was the belief, and because Ms Malicki had raised self-defence, the fifth element of the document was that the Crown had to eliminate beyond reasonable doubt that her actions were not in self-defence.

23. This was wrong. Subsections 326(2) and (3) of the Crimes Act are in the following terms:  

“(2) A person who threatens to do or cause, or who does or causes, any injury or detriment to another person because the person believes the other person will or may be or may have been called as a witness, or will or may serve or may have served as a juror, in any judicial proceeding is liable to imprisonment for 10 years.

(3) For the purposes of this section, it is immaterial whether the accused acted wholly or partly for a reason specified in subsection (1) or (2).”

24. At no stage throughout the trial does it appear that any mention was made of s 326(3). Subsections (2) and (3) were inserted by the Criminal Legislation Amendment Act 1995 (NSW), following the decision of R v Lansdell (Court of Criminal Appeal (NSW), Gleeson CJ, Finlay and Simpson JJ, 22 May 1995, unrep). The meaning of subsection (3) is clear. It was sufficient for the jury to be persuaded beyond reasonable doubt that part of the reason for Ms Malicki assaulting Mr Lees was her belief that he was a witness, even if her assault was also motivated, in part, by a desire to protect Mr Widmer.

25. What is more, by the conclusion of the trial, there was no dispute that Ms Malicki had assaulted Mr Lees (“I didn’t even think about it I just hit him twice”). And there was no dispute that when she did so, she knew he was a witness in her partner’s brother’s trial for murder (“I found out definitely when I was walking with Mr Lees through Westfield”).

26. There was in truth only one issue for the jury by the conclusion of the trial: was the jury satisfied beyond reasonable doubt that part of Ms Malicki’s belief in assaulting Mr Lees was that he had been called as a witness in the murder trial. That in turn involved the Crown displacing any reasonable doubt that Ms Malicki was solely motivated by a desire to protect her partner. As Bellew J stated in Polley v Johnson [2014] NSWSC 1191 at [63], s 326 contains a “pivotal element, namely the belief of the defendant”.

27. The highly elaborate directions, to which both Crown and defence acquiesced, were both very substantially unnecessary, and materially erroneous. And they were silent on joint criminal enterprise. The Crown did not ask for directions as to joint criminal enterprise to be included in the document.

Communications from the jury after they retired

28. The jury was provided with MFI 10 early during the summing up. After going through each of the five elements, the trial judge made it clear that “the Crown has to satisfy you beyond reasonable doubt of each of those five elements in relation to the first count”. His Honour also gave standard directions on joint criminal enterprise, about which no complaint was made, but those directions were silent as to what the alleged joint criminal enterprise actually was. The prosecutor and defence counsel were given an opportunity to ask for any clarification of the directions. Counsel for the defence did so, in respect of a factual matter not relevant to this appeal. No complaint was made about what was said or not said about joint criminal enterprise.

29. The jury retired at 12:47pm on 18 February 2013. In the afternoon a question was received from the jury and the following exchange took place:

“HIS HONOUR:  I have got a question from the jury. ‘Please clarify joint criminal enterprise, how does this affect self-defence?’ So what does anybody want to say about it?

TRIAL ADVOCATE:  Joint criminal enterprise your Honour, just have to reinforce that direction you gave in the terms of this case.

HIS HONOUR:  Just give them joint criminal enterprise direction again and also give the self-defence direction. I cannot see anything better than that, what do you say?

PHELPS:  Obviously included in self-defence direction is that it is something once raised that the Crown has to negative beyond reasonable doubt, that is included in the direction I am sure your Honour.

HIS HONOUR:  Yes. What about his question how does it affect self-defence, what do I do with that?

TRIAL ADVOCATE:  Self-defence is a separate issue.

PHELPS:  Yes.

HIS HONOUR:  Yes.

TRIAL ADVOCATE:  So joint criminal enterprise is not affected by self-defence because there is still self-defence, self-defence. In relation to the elements the Crown case it’s a joint criminal enterprise for each of the elements , obviously self-defence is a separate element so it doesn’t affect self-defence.

HIS HONOUR:  If they are satisfied beyond reasonable doubt that there is a joint criminal enterprise what then happens to self-defence.

TRIAL ADVOCATE:  Just depends in what area they are looking at joint criminal enterprise. Obviously if--

HIS HONOUR:  I think if I say anything more than just repeat the directions we start getting into very confusing territory, don’t we?

TRIAL ADVOCATE:  We do.

HIS HONOUR:  What do you say?

PHELPS:  I say that’s right and perhaps after your Honour redirects them as you have indicated they may then come back with a different question that may be answered then but I think it has to be step by step.

HIS HONOUR:  All right. I have the jury please. I think what I will say Mr Crown subject to what you say is where I said the Crown must establish both the existence of the joint criminal enterprise and the participation in it by the accused and I say must satisfy beyond reasonable doubt.

JURY RETURNED TO COURT AT 3.32PM”

30. In accordance with that exchange, the trial judge repeated his directions in relation to joint criminal enterprise and self-defence. His Honour stated that he trusted that those matters answered the jury’s question. After doing so his Honour asked whether “[a]nybody [had] anything to say about any of that?”. Both Crown and defence confirmed they did not.

31. A few minutes later a further note was received in these terms:

“We are not unanimous on three of five elements and doesn’t appear we will come to a unanimous decision, how do we proceed?”

32. In the absence of the jury, both counsel said that it was far too early for a Black direction and both agreed that his Honour should advise them to listen to each other and consider. His Honour suggested that “[t]hey’ve obviously been paying a great deal of attention today. It is ten to four, I am going to ask them to come back tomorrow and continue their deliberations”. Both counsel agreed with that course.

33. When the jury returned at 3:54pm his Honour said:

“Ladies and gentlemen you obviously have been paying close attention, and I say that with the greatest respect, to what’s been happening in court in relation to directions and matters of that nature. It’s been a long day, it’s now five to four. I think what we will do is I will adjourn until tomorrow so that you can bring a fresh mind to bear in relation to your considerations. I will ask you to continue your deliberations tomorrow morning”.

34. There was a final short exchange on the morning of the following day in the absence of the jury where his Honour raised with counsel whether he should say something about the question which had been asked the previous afternoon. The matter that concerned his Honour was that it was plain that they had to be satisfied of all five elements, otherwise they must acquit. After a short exchange, his Honour proposed not to take the matter any further. Again, both Crown and defence agreed with that course.

35. The jury returned at 10:05am, they were asked to retire to the jury room to continue their deliberations, and returned a guilty verdict at 11:42am.

Consideration of the grounds of appeal

36. There can be no doubt that the jury was misdirected by the primary judge. The most important error was the direction that they need be satisfied beyond reasonable doubt that the only reason for Ms Malicki striking Mr Lees was her belief that he would be called as a witness. However, that error operated wholly in her favour. It does not follow that she did not receive a trial in accordance with law because the members of the jury were told, incorrectly, that in order to reach a guilty verdict, they had to be satisfied beyond reasonable doubt of a narrower case.

37. The jury is presumed to perform its function in accordance with the directions given to it. Any jury which reached a guilty verdict on the basis that they needed to be satisfied beyond reasonable doubt that Ms Malicki was solely motivated by reason of Mr Lees’ role as a witness would be satisfied beyond reasonable doubt that she was at least partly motivated by reason of his role as a witness, and would have convicted had it been given a correct direction in respect of s 326(3). Further, any jury which reached a guilty verdict on the basis that they needed to be satisfied beyond reasonable doubt that Ms Malicki was solely motivated by reason of Mr Lees’ role as a witness would have necessarily rejected that she was even partly motivated by a belief that her actions were necessary to defend Mr Widmer. Thus an adverse answer to the questions posed by points 3 and 4 of the written directions necessarily rejected Ms Malicki’s claim that she acted in self-defence.

38. In his supplementary submissions, counsel for Ms Malicki sought to resist that conclusion. He said:

“[T]he reality is that it is a falsehood to regard legal directions as favouring one side or another. It is not possible as a matter of legal theory or practical reality to say that an erroneous direction does not affect an accused because the error may, as lawyers view it in retrospect, favour the accused rather than the Crown. The appellant’s entitlement, as the person at risk to her liberty, was to a trial by jury directed as to the law to apply to the facts found by them.

There surely can be no hard and fast rule; there never is with respect to misdirection. However, in this case, the error can only add to the palpable sense of confusion on the part of the jury as to the law to be applied.”

39. I cannot agree with that submission.

40. First, the submission ignores the important roles of r 4 of the Criminal Appeal Rules and s 6(1) of the Criminal Appeal Act 1912 (NSW). Ms Malicki requires leave to appeal against her conviction based on misdirection, because her counsel at trial, although given full opportunity, made no complaint as to the directions. That is linked with the closing words of s 6(1), because this Court is empowered to dismiss the appeal, even if there be legal error, if it is satisfied that no substantial miscarriage of justice has actually occurred. Both those provisions are significant qualifications to the proposition that the appellant was entitled to a direction in accordance with law, if by that it is meant that any misdirection will lead to an appeal being allowed.

41. Secondly, taking Ms Malicki’s submission at its highest, it seems to be put that an unnecessarily complex direction was given to the jury, leading to a miscarriage of justice. At least insofar as that submission applies to the present appeal, I would reject it. Of course it is unfortunate that the jury was not directed correctly. However, whether there is a miscarriage of justice turns on what would have happened had the jury been correctly directed, relying on what Mason CJ, Deane and Dawson J referred to in Kural v The Queen (1987) 162 CLR 502 at 508 as “the unmistakable inferences to be drawn from the jury’s verdict of guilty”. In the facts of this case, I cannot see how the same jury acting reasonably would have reached a different verdict had they been directed in accordance with s 326(3), rather than in accordance with the complicated and more onerous directions which they in fact received. This is, in fact, a stronger case than Kural, where the “overall effect” of the misdirection was favourable to the accused, although one aspect of it was, theoretically, unduly unfavourable to him.

42. Substantially the same reasoning applies to Ms Malicki’s submissions in relation to self-defence. Had the Crown case on joint criminal enterprise been put differently, the position might have been different. If a broader joint criminal enterprise had been maintained, it would, speaking generally, have been necessary for the jury to be satisfied beyond reasonable doubt of an agreement or arrangement between Ms Malicki and Mr Widmer to lure Mr Lees away from the street for the purpose of Mr Widmer assaulting him.

43. But that is not how the Crown case was ultimately put to the jury. The joint criminal enterprise alleged involved both Mr Widmer and Ms Malicki assaulting Mr Lees together because he was a witness. Given what was put as to Ms Malicki’s sole purpose, the alleged joint criminal enterprise was inconsistent with the possibility that Ms Malicki was motivated by defending her partner when she assaulted Mr Lees. Once again, it is unfortunate that joint criminal enterprise was not identified more clearly than it was. It is unfortunate that the jury were not told that if they were satisfied beyond reasonable doubt that Ms Malicki assaulted Mr Lees as part of a joint criminal enterprise with Mr Widmer, no question of self-defence arose. But once again, I cannot see how the errors and unnecessary complexity of MFI 10 and the other directions given to the jury gave rise to any miscarriage of justice. The fact that they must have been satisfied that he was assaulted solely because he was a witness, something which goes beyond the elements of the offence, does not mean that there has been a miscarriage of justice.

44. For those reasons, this is a case where although there was error, leave should not be granted to complain of directions which were wrongly favourable to Ms Malicki, and of which she did not complain at the trial. It has not been established that there was any miscarriage of justice so as to warrant the grant of leave pursuant to r 4.

45. Ground 3 is in a different category. Having received further directions sometime after 3.32pm, the jury retired and shortly thereafter reported that they could not reach agreement as to three of the five elements of MFI 10. The jury did not say that they did not understand what the directions meant. They were just reporting what at that time appeared to be a lack of progress in reaching a unanimous verdict. This occurred at the end of a day. The judge told them, at 3.54pm, to return the following day. They did so. They resumed their deliberations without returning to the matter, or raising any other questions as to the directions. No error is show in the course that was adopted.

46. For those reasons, I propose that leave under r 4 of the Criminal Appeal Rules be refused in respect of grounds 1 and 2, and that otherwise the appeal against conviction be dismissed.

The Crown appeal

47. The Crown appealed from the sentence imposed by the primary judge of 20 months’ imprisonment to be served by an intensive correction order.

Remarks on sentence

48. His Honour referred to the maximum penalty of 10 years’ imprisonment, and noted that Ms Malicki had asked to take into account her possession of 6.7 grams of cannabis on a Form 1. His Honour identified the elements of the offence in respect of which the jury reached a verdict of guilty as “that Ms Malicki caused injury to Michael Lees because she believed that Michael Lees would be called as a witness in judicial proceedings and at the time she was not acting in self-defence”. His Honour noted the divergent evidence as to how many times Ms Malicki struck Mr Lees, and was satisfied that she did so on at least one occasion. His Honour then said:

“I am satisfied beyond reasonable doubt that the offender took Mr Lees to the lift corridor expecting some sort of confrontation with Mr Widmer. I am not able to say that the offender expected that the confrontation would involve violence.”

49. Although as noted above there was evidence that Mr Widmer had said “[g]et a knife”, his Honour was not satisfied that even if that were said, it was something which Ms Malicki expected, and therefore put it to one side. His Honour did not find one way or the other whether in fact that was said.

50. His Honour had regard to the fact that the injuries suffered by Mr Lees were not serious, and continued:

“When I take that [i.e., the injuries were not serious] into account, when I take into account the offender’s participation, that is swinging the handbag on one or more possible occasions, that her involvement so far as the offending to which she has been convicted was, it seems to me, could be described as spontaneous. ... I am of the view that so far as the objective seriousness here is concerned it ought to be considered towards the lower end of the range.”

51. His Honour also accepted that the aggravating factor of being in company was made out, and noted Ms Malicki was on conditional liberty at the time.

52. In relation to Ms Malicki’s subjective circumstances, his Honour found that she had been abusing alcohol and other drugs from the age of 12, and had, since being charged with the offence, been on bail. She had applied for the conditions of her bail to be varied so as to require her to reside at a rehabilitation establishment, and did so from 14 December 2012. His Honour described the presentence reports as speaking “glowingly of her progress since this offence”.

53. His Honour referred to the evidence from her treating doctor, Dr Wiren, that she suffered from a mental illness at the time of the assault. The doctor diagnosed bipolar disorder. His Honour referred to her criminal record, the fact that the offending conduct occurred while she was on a bond. He had regard to questions of parity, noting that Mr Widmer had been sentenced to an aggregate sentence of three years imprisonment, but had a criminal record of “considerable more seriousness than this offender”, and that Ms Malicki was “in a very different position from Mr Widmer in relation to her involvement in the offence, what she did during the offence and her mental state”.

54. His Honour then said:

“In my view this is a serious matter. The justice system needs to be protected by courts giving sentences which are seen by others that if you try and interfere with the justice system you can expect a custodial sentence, and in my view the only appropriate sentence here is a custodial sentence.”

55. His Honour considered that an appropriate sentence was in the region of 22 months. His Honour formed the view that in light of the considerable progress made towards rehabilitation, it was appropriate for the sentence to be served by way of an Intensive Correction Order. The sentence in fact imposed was for 20 months.

Was the sentence manifestly inadequate?

56. Although the notice of appeal contains four grounds, it was confirmed when the appeal was heard that they were errors supportive of a single conclusion, namely, that the sentence was manifestly inadequate. That accorded with what was said in R v Harris [2015] NSWCCA 81 at [46].

57. Even so, ground 3 of the Crown appeal raised a discrete point, which may conveniently be addressed first. It was based on the fact that the primary judge referred to one of two reports, both tendered by the defence. As noted above, his Honour referred to the report of Dr Wiren, the treating doctor, and did not refer to that of Dr Nielssen, a qualified psychiatrist. The Crown said that this disclosed material error, because Dr Nielssen, who was better qualified, made no causal link between the offending behaviour and the moral culpability of Ms Malicki, while Dr Wiren described her mental illness as bipolar and made the causal link.

58. No appellable error is disclosed. Unsurprisingly, given that both reports were tendered by the defence, there is little material difference between them. Dr Nielssen concluded that Ms Malicki “was affected by symptoms of an untreated mental condition as well as the effects of chronic substance abuse at the time of the offence”. Dr Wiren went further and diagnosed bipolar disorder at the time of the offence. It is true that Dr Wiren was more specific than Dr Nielssen, but, contrary to the Crown submissions, both doctors concluded that Ms Malicki was affected by a mental condition at the time of the offence. It is also true that Dr Wiren had not completed formal qualifications in psychiatry, but it was not suggested that his opinions were beyond his expertise. Nor was there any contrary evidence called by the Crown. No error is shown by his Honour confining his attention to one of two highly similar reports.

59. Returning to the principal submissions directed to the sentence being manifestly inadequate, the Crown complained that the primary judge had wrongly characterised the objective seriousness of the offending conduct at the lower end, and that this failed to have regard to the important elements of “luring away” Mr Lees into the shopping centre. The Crown also complained that “his Honour erred by excluding from his consideration that [Ms Malicki] was liable for the injuries inflicted by the co-offender upon the victim by way of joint criminal enterprise” (written submissions, para 38).

60. If that had been the offending conduct for which Ms Malicki was convicted and sentenced, there would have been force in those submissions, and I would have allowed the appeal. To be involved in an arrangement or understanding to lure a witness to a relatively secluded location where he was to be assaulted by an accomplice is an extremely serious crime. Interference with a witness is a most serious offence. It strikes at the heart of the judicial process:  Marinellis v R [2006] NSWCCA 307 at [10]. As the Crown rightly submitted, general deterrence is paramount for such offences, and conduct should be denounced. See for example R v Schaffer [2005] NSWCCA 193; 153 A Crim R 372 at [23] and Gordon v R [2009] NSWCCA 72 at [37]. In R v Linney [2012] NSWSC 1564, Bellew J said at [103]:

“An offence against s 326(1)(b) of the Crimes Act is, by its very nature, a serious offence. It strikes at the very heart of the administration of justice. That is a circumstance which, in my view, must be reflected in the sentence which is imposed in the present case. A person who chooses to offend in this way must expect the imposition of condign punishment. To do otherwise would be to fail to have proper regard to the authority of the courts which would, in turn, undermine the administration of justice.”

61. An appeal was dismissed: Linney v R [2013] NSWCCA 251. R A Hulme J, with the agreement of Gleeson JA and Adamson J, said at [88] that:

“[The offender’s] conduct, amounting as it did to a direct attack upon the administration of justice, called for a severely denunciatory sentencing imposition.”

The same considerations apply to an offence against s 326(2).

62. But the Crown’s submissions on appeal are inconsistent with what occurred at trial. That is so for two separate reasons. First, as will have been seen already, the Crown’s joint criminal enterprise case did not ultimately extend to Ms Malicki being involved through luring Mr Lees into the shopping centre. There may have been good forensic reasons for that course. One possibility is a concern that in light of the disputed conversation between Mr Lees and Ms Malicki and the weaknesses of his recollection, a jury would not be satisfied beyond reasonable doubt that that was her purpose. Another is the possibility that there was at least a reasonable doubt that even if the jury was satisfied beyond reasonable doubt that Ms Malicki believed, having lured Mr Lees into a secluded space, that Mr Widmer would confront him, it would not be satisfied that she believed there would be violence or the threat of violence.

63. Secondly, the trial advocate who appeared at the sentencing hearing (who had not appeared at the trial) expressly abandoned all aspects of a Crown case based on a joint criminal enterprise. That appears from the following exchange during the sentencing proceedings:  

“MICHALKO: [T]he Crown put its case and the jury was directed on the basis of joint criminal enterprise in relation to this matter. The evidence was led to the jury in relation to the offender and the co-offender Mr Widmer acting in concert. That is part of the basis of the Crown’s submission that the offender lured the victim to the corridor and that the two of them acted together in relation to assaulting the victim. That is my understanding of how the Crown put its case and how the jury was directed and --

HIS HONOUR: I don’t know if that’s right or wrong, that’s what is concerning me. [His Honour then said that he had directed the jury about acting in company in relation to the second count, and continued, in relation to that direction.] ... A mere coincidence of separate acts is insufficient. There must at least be an understanding between them as to their common purpose or object. An arrangement or understanding between the accused and Aaron Widmer to assault Michael Lees is critical. So --

MICHALKO: That was put in relation to the second count.

HIS HONOUR: That’s right.

MICHALKO: -- I hear what your Honour is saying and the jury came back with guilty on the first count.

HIS HONOUR: That’s right.

MICHALKO: Yes I understand your Honour.

HIS HONOUR: So the jury --

MICHALKO: I withdraw that submission in relation to joint criminal enterprise --

HIS HONOUR: All right.

MICHALKO: -- in relation to the offence that was found proved by the jury.”

64. Thus the Crown’s principal submissions on this appeal were directed to aspects of the conduct which were unequivocally abandoned by the Crown during the sentencing hearing. On appeal, the Crown pointed to the written submissions on sentence, but it is clear from the transcript that it was those written submission which were, expressly, withdrawn.

65. True it is that the primary judge was mistaken to say that joint criminal enterprise had no part to play in relation to the charge on which Ms Malicki was convicted. It is to be recalled that some ten months had elapsed in the meantime. But his Honour was not corrected. To the contrary, the Crown unequivocally abandoned joint criminal enterprise when the sentence was imposed. In circumstances where the Crown expressly abandoned all aspects of a case of joint criminal enterprise in respect of the crime for which Ms Malicki was being sentenced, I do not consider that there is appellable error in the trial judge sentencing on the basis put to him by the Crown.

66. The Crown pointed to the oral submissions made in the sentencing proceedings that there was sufficient evidence for the judge to find (necessarily, beyond reasonable doubt) that Ms Malicki was aware that Mr Widmer was following her and that she intentionally led Mr Lees to a place where the assault could take place. The Crown offered to provide the CCTV footage to this Court, although at no stage did it submit that this Court should view that footage, which had not been included in the appeal papers.

67. The Crown bears the onus on an appeal under s 5D. It is for the Crown to determine what materials from the trial are necessary in order for its appeal to be determined. It is not for this Court to choose to accept the Crown’s invitation in oral submissions to view materials not provided in the appeal books. Moreover, as has been said on more than one occasion, it will ordinarily be necessary to identify in detail what is to be discerned from the video evidence. As was said in SKA v The Queen [2011] HCA 13; 243 CLR 400 at [31] by French CJ, Gummow and Kiefel JJ, “[i]t is to be expected that if there is something which may affect a court's view of the evidence, which can only be discerned visually or by sound, it can and will be identified”; see also Panchal v R; R v Panchal [2014] NSWCCA 275 at [52]-[54].

68. This Court has not accepted the Crown’s invitation to make the CCTV footage available. But even if it established a strong case that Ms Malicki knew that Mr Widmer was following her, it makes little difference. I fail to see how such footage could exclude beyond reasonable doubt a belief by Ms Malicki that Mr Widmer would confront Mr Lees verbally, falling short of assaulting him or threatening to assault him. Since no case of the joint criminal enterprise based on “luring” Mr Lees was ultimately put to the jury, it was necessary to show error in the sentencing judge failing to be satisfied beyond reasonable doubt of this. No such error is made out.

69. The Crown also advanced submissions that the sentencing discretion was “tailored” to reach a result which was less than 2 years, so as to make an intensive correction order available. It is a serious thing to submit that a sentencing judge has structured a sentence so as to achieve a result which is not otherwise available. Such cases happen, but it is to be expected that they will be rare. A much stronger case is required than appears from the sentencing remarks in this appeal, which may be contrasted with R v Cahill [2015] NSWCCA 53. That was a case, where the series of non-compliances with the Crimes (Sentencing Procedure) Act 1999 (NSW) and the failure to explain why extremely serious criminality should result in a sentence of an intensive correction order supported such an inference: see at [9]-[10] (Leeming JA), [105]-[113] (Johnson J) and [140] and [144] (Schmidt J).

70. The submissions based on Ms Malicki’s joint responsibility for the much more serious injuries inflicted by Mr Widmer fall away (because they were abandoned in the sentence appeal). The submissions based on “luring” Mr Lees to the assault were not put to the jury and could not be established beyond reasonable doubt. On that basis, no error is shown in the sentencing judge’s conclusion that the criminality was low. Once that is done, no submission of “tailoring” is sustainable.

71. For those reasons, no ground of the Crown appeal is made out. It is a very serious thing to assault a person believing that he or she is a witness. But by reason of the way the Crown case had been advanced, Ms Malicki was sentenced for a very minor assault, and her criminality was dwarfed by that of her co-offender Mr Widmer. Given her very powerful subjective circumstances, which included exposure to alcohol and unlawful drugs from a young age, a mental illness, and voluntarily altering her bail conditions to require attendance at a residential rehabilitation centre, where in the years prior to being sentenced she had made considerable progress, I would not regard the sentence imposed as an “affront to justice” or “plainly unjust”, although it is relatively lenient.

72. It is not necessary to address residual discretion, which given the foregoing coupled with the delay and the unfortunate way in which the trial and sentencing hearing were conducted would not be straightforward. I propose that the Crown appeal be dismissed.

73. The formal orders I propose are:

In the appeal against conviction:

1. Refuse leave in respect of grounds 1 and 2.

2. Appeal dismissed.

In the Crown appeal:

1. Appeal dismissed.

74. JOHNSON J:  I agree with Leeming JA.

75. BEECH-JONES J:  I agree with Leeming JA.

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Decision last updated: 25 June 2015