Raumakita v R
[2011] NSWCCA 126
•08 June 2011
Court of Criminal Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Raumakita v R [2011] NSWCCA 126 Hearing dates: 25 May 2011 Decision date: 08 June 2011 Jurisdiction: Criminal Before: Macfarlan JA at 1
Johnson J at 2
Garling J at 66Decision: 1. Leave to appeal against conviction granted under s.5(1) Criminal Appeal Act 1912.
2. Appeal dismissed.
Catchwords: CRIMINAL LAW - conviction appeal - armed robbery - Appellant convicted of two armed robberies and acquitted of third count - appeal against conviction on first count only - Crown relied upon coincidence evidence - relevance of acquittal on third count - whether verdict unreasonable or cannot be supported - verdicts not inconsistent - verdict on first count not unreasonable and is supported by evidence - appeal dismissed
APPEAL - Appellant alleged to have confessed to crime on first count after trial but before appeal - Crown relies on evidence of admission on appeal - whether relevant on appeal to s.6(1) proviso or order for retrial under s.8 Criminal Appeal Act 1912Legislation Cited: Crimes Act 1900
Criminal Appeal Act 1912
Crimes (Appeal and Review) Act 2001Cases Cited: R v TK [2009] NSWCCA 151; 74 NSWLR 299
Rasic v R [2009] NSWCCA 202
M v The Queen [1994] HCA 63; 181 CLR 487
MFA v The Queen [2002] HCA 53; 213 CLR 606
Morris v The Queen [1987] HCA 50; 163 CLR 454
SKA v The Queen [2011] HCA 13; 85 ALJR 571
The Queen v Hillier [2007] HCA 13; 228 CLR 618
The Queen v Keenan [2009] HCA 1; 236 CLR 397
The Queen v Nguyen [2010] HCA 38; 85 ALJR 8
Dungay v R; R v Dungay [2010] NSWCCA 82
Still v R [2010] NSWCCA 131
Storey v The Queen [1978] HCA 39; 140 CLR 364
The Queen v Carroll [2002] HCA 55; 213 CLR 635
R v De-Cressac (1985) 1 NSWLR 381
R v Reid (NSWCCA, 13 September 1993, unreported)
R v McCarthy and Ryan (1993) 71 A Crim R 395
R v Gudgeon (1995) 83 A Crim R 228
R v Bikic [2001] NSWCCA 537
Cesan v The Queen [2008] HCA 52; 236 CLR 358
Siganto v The Queen [1998] HCA 74; 194 CLR 656
The Queen v Taufahema [2007] HCA 11; 228 CLR 232
R v JS [2007] NSWCCA 272; 175 A Crim R 108
R v PL [2009] NSWCCA 256; 261 ALR 265
R v D [2006] EWCA Crim 1354
R v Miell [2007] EWCA Crim 3130Texts Cited: Hamer, "The Expectation of Incorrect Acquittals and the 'New and Compelling Evidence' Exception to Double Jeopardy" [2009] Crim LR 63 Category: Principal judgment Parties: Livai Raumakita (Appellant)
Regina (Respondent)Representation: Mr CJ Smith (Appellant)
Ms N Noman (Respondent)
Legal Aid Commission of New South Wales (Appellant)
Solicitor for Public Prosecutions (Respondent)
File Number(s): 2009/4126 Decision under appeal
- Date of Decision:
- 2010-04-23 00:00:00
- Before:
- Keleman SC DCJ
- File Number(s):
- 2009/4126
Judgment
MACFARLAN JA : I agree with Johnson J.
JOHNSON J : The Appellant, Livai Raumakita, appeals against conviction with respect to an offence of armed robbery under s.97(1) Crimes Act 1900 .
The Appellant stood trial between 8 and 18 February 2010 at the Parramatta District Court before his Honour Judge Keleman SC and a jury on an indictment containing four counts. The charges were:
(a) Count 1 - armed robbery on 13 August 2007 at Hunts Motel, Casula;
(b) Count 2 - armed robbery on 28 August 2007 at the Moorebank TAB;
(c) Count 3 - armed robbery on 1 September 2007 at the Canterbury Bowling Club;
(d) Count 4 - during the course of the armed robbery on 1 September 2007 at the Canterbury Bowling Club, whilst in company with another person, assault occasioning actual bodily harm.
The Appellant was convicted of the first and second counts and acquitted on the third and fourth counts.
On 23 April 2010, the Appellant was sentenced as follows:
(a) Count 1 - non-parole period of five years commencing on 8 February 2012 and expiring on 7 February 2017, with a balance of term of four years commencing on 8 February 2017 and expiring on 7 February 2021;
(b) Count 2 - non-parole period of five years and four months commencing on 8 February 2009 and expiring on 7 June 2014, with a balance of term of two years and eight months commencing on 8 June 2014 and expiring on 7 February 2017.
The total effective sentence comprised a non-parole period of eight years commencing on 8 February 2009 and expiring on 7 February 2017, with a balance of term of four years commencing on 8 February 2017 and expiring on 7 February 2021.
The Appellant seeks to appeal with respect to his conviction on the first count only. The single ground of appeal is as follows:
"The verdict of guilty on count one of the indictment is unreasonable and unable to be supported, especially with regard to the acquittals on counts three and four of the indictment."
There is no application for leave to appeal against sentence.
The Trial
At trial, there was no dispute that the robberies alleged in the first, second and third counts had occurred, nor that a member of staff of the Canterbury Bowling Club had been assaulted during the course of the third robbery (the fourth count). The defence case at trial was that the Appellant was not involved in any of the three robberies. The Appellant did not give evidence at the trial.
The First Count - Armed Robbery at the Hunts Motel, Casula
The armed robbery in the first count was committed on 13 August 2007 when, at about 11.30 pm, three persons smashed through a glass sliding door at the entrance to the reception of Hunts Motel at Casula and entered the premises. The robbery was captured on CCTV footage. The three men wore balaclavas. One offender carried a red axe (which was visible on the CCTV footage). Another carried a knife and the third man had a hammer. The robbers threatened Mr Tony Lynes, the night manager, who was at the bar checking the float when the men smashed through the door. The robber with the knife said to Mr Lynes "Open the safe or I'll cut your throat" . Mr Lynes met the man with the knife between the bar and the entrance and a struggle ensued, before the robber put the knife to Mr Lynes' throat and said "I'll cut your throat if you don't open it, open the safe" . Mr Lynes struggled with the man and was then hit on the head, apparently by the robber holding the hammer. Mr Lynes passed out and, when he came to, he saw police at the front entrance door to the motel.
The evidence of Mr Lynes and the CCTV footage indicated that the robber carrying the red axe was wearing a light jacket and balaclava, with the other robbers wearing dark clothes and balaclavas. The Appellant's size and build were not inconsistent with the descriptions of the robbers observable on the CCTV footage and provided by Mr Lynes.
The Second Count - Armed Robbery at Moorebank TAB
At about 10.45 am on 28 August 2007, two men smashed through the glass at the front door of the Moorebank TAB, which was located in premises within the Moorebank Hotel. One of the robbers used an axe to smash the glass. The robbery was captured on CCTV footage. One robber carried a red-coloured axe (visible in the CCTV footage) and the second robber carried a knife. Both offenders wore balaclavas.
Ms Barbara McGinnes was working alone at the Moorebank TAB on that day. The last customer left through a door to the hotel area after 10.45 pm. She went behind the counter to put the shutter down between the hotel and the TAB when she heard banging and the smashing of glass. She saw two people smashing the glass at the front door. She ran to the window between the hotel and the TAB, screaming for help and that somebody was breaking in. Having smashed through the glass at the front door, the two offenders ran in and smashed the glass on the counter. They jumped the counter and were screaming and yelling at Ms McGinnes to open the safe. A knife was held at her throat. After she told them that the safe was time locked and could not be opened, one of the robbers held a knife at her throat and said "Open the safe, you fucking bitch, otherwise I'll kill you" . The other robber was rummaging through the drawers behind the windows.
Mr Adam Cooper was working as the senior manager at the Moorebank Hotel on the evening of 28 August 2007. He heard Ms McGinnes screaming and ran through the common bar which connected to the TAB. He looked through a glass door and saw the two offenders. He described the men as quite tall compared to him (he was roughly 175 centimetres tall). He said they were dark in appearance with balaclavas, and their actual skin was dark as was their clothing. He could see the hands of one of the men and he described the skin colour of that man as dark brown. He said in evidence that he heard one of the robbers speak with an Islander accent, which he believed was from New Zealand, although he was not 100% sure of the country that the accent seemed to come from (AB317).
Detective Senior Constable Kneipp had spoken to the Appellant and described his accent as a "very slight Islander accent" which he explained as that of a "Pacific or Torres Strait Islander which can encompass New Zealand, Tongan, Samoan" (AB447).
Blood consistent with that of the Appellant was found on the smashed door at the Moorebank TAB. A backpack was worn by one of the offenders during this robbery. The backpack was retrieved after the third robbery and the Appellant's fingerprints were located on items found inside the backpack, those items having been stolen during the second robbery. In addition, DNA consistent with that of the Appellant was located on a disposable glove in the backpack.
It was the unchallenged evidence of Ms Vivien Beilby, a senior forensic biologist with the Division of Analytical Laboratories, that the DNA evidence from the front door glass, and the blood in the disposable glove contained in the backpack, matched that of the Appellant in that the DNA profile occurred in fewer than one in 10 billion individuals (AB273).
The Third and Fourth Counts - Offences at Canterbury Bowling Club
The third robbery was committed by two men on 1 September 2007 when, at about 7.40 pm, they entered through the single front door of the Canterbury Bowling Club without breaking glass. One of the offenders attempted later to smash through the all-glass doors to exit the club after the robbery.
There was no CCTV footage of the third robbery. The description of events and the offenders was provided by the oral evidence of those present. Mr Phillip Tzavellas was a member of the Club, and was leaving the premises when he observed the robbers. Mr Jay Beddoes was a member of the Club who observed events whilst on the premises. Ms Rachel McKee was working as a bar attendant at the Club at the time of the robbery, and observed events in that context.
The witnesses observed that one robber carried a red tomahawk or axe and the other, a kitchen knife.
Both offenders were wearing balaclavas and one or both was wearing a hooded jumper. Mr Beddoes stated that both offenders were wearing black gloves.
Mr Tzavellas said there was "a bit of a gap" under the balaclavas and he thought that the man with the axe had a fair skin colour (AB338). Mr Beddoes said that one of the offenders said "Where's the fucking safe?" and "Take me to Al or I'll fucking kill you" .
According to Mr Beddoes, their accents sounded normal, but they were calling each other "Mohammed" (AB328). According to Ms McKee, both offenders seemed to have Middle-Eastern accents (AB371-372). Ms McKee heard one of them call the other "Mohammed" (AB375).
Coincidence Evidence
At trial, the Crown relied upon coincidence evidence with aspects of the robbery in the second count said to be strikingly similar to those in the first count, and with aspects of the robbery in the second count being strikingly similar to those in the third count. The circumstances identified by the trial Judge during the summing up to the jury were that, in each of the robberies (AB44, AB53):
(a) there was a sudden and violent entry into the premises that were robbed;
(b) one of the offenders was carrying a small red axe;
(c) one of the offenders was carrying a long bladed knife;
(d) the offender carrying the knife held it against the throat of the person being robbed;
(e) when the offender with the knife held a knife to the victim's throat, that offender threatened the victims that unless the safe was opened, the victim would be killed or have their throat cut;
(f) all of the offenders wore balaclavas.
The Crown and trial defence counsel addressed the jury concerning other features of the offences as well. Defence counsel emphasised, amongst other things, the evidence of witnesses concerning the third and fourth counts that the robbers had Middle Eastern accents and called each other "Mohammed" .
Submissions on Appeal
Mr Smith, counsel for the Appellant, submitted that the verdict of guilty on the first count was unreasonable. He submitted that the question was whether the verdict was reasonable on the whole of the evidence, having regard to all relevant facts and circumstances, including the circumstance that the jury acquitted on the third and fourth counts.
Mr Smith submitted that it was possible to discern from the acquittals that the weight which the Crown sought to place on coincidence evidence had been, in a sense, diluted as the coincidence evidence said to exist with respect to the second and third counts had not led to a conviction on the third count: R v TK [2009] NSWCCA 151; 74 NSWLR 299 at 322 [135].
Mr Smith developed the submission that the acquittals on the third and fourth counts served to reduce or dilute the weight that this Court should give to the coincidence evidence relied upon by the Crown with respect to the first count. He submitted that, as the Crown case on the first count was entirely dependent upon coincidence evidence arising from the second count, then an examination of the verdicts at trial, and the totality of the evidence, ought lead this Court to conclude that the verdict of guilty on the first count was unreasonable and ought be quashed.
The Crown submitted that there were clear points of distinction between the evidence with respect to the third and fourth counts, and that relevant to the first and second counts. It was submitted that there was a clear explanation for the different verdicts. Further, the Crown submitted that there were significant similarities between the first and second counts which served to fortify the conclusion of the jury that the Appellant was one of the robbers in each of the first and second crimes.
Decision
As the sole ground of appeal against conviction does not involve a question of law alone, the Appellant requires leave to appeal against conviction: s.5(1) Criminal Appeal Act 1912 ; Rasic v R [2009] NSWCCA 202 at [12]. Having regard to the arguments advanced at the hearing, I would grant leave to appeal against conviction.
In determining a ground of appeal which asserts, for the purpose of s.6(1) Criminal Appeal Act 1912, that the verdict was unreasonable or cannot be supported having regard to the evidence, this Court is required to apply the test set down in M v The Queen [1994] HCA 63; 181 CLR 487 at 493, and restated in MFA v The Queen [2002] HCA 53; 213 CLR 606. The Court is to make an independent assessment of the evidence, both to its sufficiency and quality. This involves a question of fact. The Court is to determine whether the evidence is such that it was open to a jury to conclude beyond reasonable doubt that the Appellant was guilty. The central question is whether this Court is satisfied that the Appellant is guilty of the offence charged in the first count: Morris v The Queen [1987] HCA 50; 163 CLR 454 at 473; SKA v The Queen [2011] HCA 13; 85 ALJR 571 at 575 [11]-[14], 576-577 [20]-[22].
In exercising that function, the evidence ought not be considered piecemeal: The Queen v Hillier [2007] HCA 13; 228 CLR 618 at 637-638 [46]-[48]; The Queen v Keenan [2009] HCA 1; 236 CLR 397 at 435 [128]. This Court is required to consider the totality of evidence before the jury. This involves an assessment of direct evidence of witnesses, and inferences to be drawn from a combination of events: Rasic v R at [29].
In some cases, the fact that the Court of Criminal Appeal has not seen or heard the witnesses at trial may have a bearing on the outcome of an appeal on an unreasonable verdict ground. In M v The Queen , Mason CJ, Deane, Dawson Toohey JJ said at 494-495:
"In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. Although the propositions stated in the four preceding sentences have been variously expressed in judgments of members of the court in previous cases, we have put aside those differences in expression in order to provide authoritative guidance to courts of criminal appeal by stating the propositions in the form in which they are set out above."
The M v The Queen formulation of the task of this Court has been emphasised by the High Court in later cases: The Queen v Nguyen [2010] HCA 38; 85 ALJR 8 at 14 [33]; SKA v The Queen at 575 [13].
Where an unreasonable verdict ground is said to be supported by a claim of inconsistent jury verdicts, the focus of the enquiry is upon any explanation for an acquittal, not for a conviction: R v TK at 321 [128].
The Appellant bears the burden of establishing inconsistency of verdicts. This Court has said that it is only where inconsistency rises to the point that intervention is necessarily required to prevent a possible injustice that the relevant conviction will be set aside: Dungay v R; R v Dungay [2010] NSWCCA 82 at [22]; Still v R [2010] NSWCCA 131 at [57]-[61].
The written submissions for the Appellant asserted that this Court was required to give "full weight" to the acquittals on the third and fourth counts, citing Storey v The Queen [1978] HCA 39; 140 CLR 364. This assertion is of no real assistance to the Appellant. As Gleeson CJ and Hayne J observed in The Queen v Carroll [2002] HCA 55; 213 CLR 635 at 646 [31], seldom, if ever, "can a verdict of acquittal be understood as some positive finding by the jury in favour of the accused about any of the issues that may have been contested at trial" .
In my view, there is a readily available explanation in this case for the acquittals by the jury on the third and fourth counts. This explanation was stated succinctly by the trial Judge in his remarks on sentence of 23 April 2010 (pages 6-7):
"The jury were clearly satisfied beyond reasonable doubt that the combination of circumstances present in the armed robbery committed at the TAB were so strikingly similar to the armed robbery committed at the Hunts Motel, the subject of count 1, that the offender must have been one of the three persons who committed the armed robbery at the Hunts Motel. However, on the evidence adduced in the trial, I am also unable to conclude beyond reasonable doubt which of the three persons who committed that armed robbery was the offender.
In relation to count 3 there was evidence that each of the two persons who committed that armed robbery had Middle Eastern accents and referred to each other as 'Mohammed'. The offender does not have a Middle Eastern accent and his name is not Mohammed. In this context it is relevant to note that the armed robbery, the subject of count 1, was committed by three persons.
I am satisfied that the jury's verdict of not guilty in respect of count 3 is explicable on the basis that while they were satisfied beyond reasonable doubt that the offender was one of the three participants who committed the armed robbery the subject of count 1, and one of the two persons who committed the armed robbery the subject of count 2, the Crown could not exclude the reasonable possibility, based on the evidence that the offenders in the armed robbery the subject of count 3 had Middle Eastern accents and called each other 'Mohammed', that the offender was not one of the two persons who committed the armed robbery at the Canterbury Bowling Club."
There was a very strong Crown case against the Appellant on the second count. The totality of the evidence bearing upon that count, including the DNA and fingerprint evidence, established clearly that the Appellant was one of the two robbers involved in the offence committed at the Moorebank TAB on 28 August 2007.
In addition to the particular features of the offences relied upon by the Crown as coincidence evidence (see [24] above), there were other matters which provided cogent support for a conclusion that the Appellant was criminally involved in the robberies which comprised both the first and second counts. The jury had CCTV footage (and still photographs taken from that footage) with respect to both the first and second counts. This was additional important evidence which gave the jury a contemporaneous visual record of parts of these two robberies. There was no such evidence available with respect to the third count.
There was evidence with respect to the second count that one of the offenders spoke with an Islander accent, a feature not far removed from the voice of the Appellant. By way of contrast, the evidence of the witnesses concerning the third and fourth counts referred to Middle Eastern accents, with the two offenders referring to each other as "Mohammed" . At least one of the two offenders in the third count was said to have fair skin.
Having had an opportunity to consider the still photographs taken from the CCTV footage concerning the first and second counts (which were exhibits at trial), it is easy to see how this evidence could have been of considerable assistance to the jury (as it is to this Court) in a direct comparison of features of the offenders, including the axe, as being the same persons and things. This evidence was damaging to the Appellant.
Counsel on appeal did not submit that this Court should view the CCTV footage concerning the first and second counts for the purpose of discharging the Court's function under s.6(1): SKA v The Queen at 578 [30]-[31], 591-592 [116].
In my view, the acquittal of the Appellant on the third and fourth counts is entirely explicable. It provides no assistance to the Appellant in support of his unreasonable verdict ground. It is apparent that the jury understood and applied the directions requiring separate consideration to be given to each count, and the direction concerning the requirement for proof beyond reasonable doubt and the associated direction that the jury did not have to be satisfied that the Appellant was innocent before it could find him not guilty on any count (AB59). Orthodox directions were given to the jury, and applied by the jury in reaching verdicts.
Having undertaken an independent assessment of the evidence, both as to its sufficiency and its quality, I am satisfied that the Applicant was guilty of the offence charged in the first count. The evidence was such that it was open to the jury to conclude beyond reasonable doubt that the Appellant was guilty. It has not been demonstrated that the verdict on the first count was unreasonable or cannot be supported having regard to the evidence.
In my view, the sole ground of appeal against conviction fails.
An Admission Made by the Appellant After Conviction
The conclusion reached with respect to the appeal against conviction leaves it unnecessary to determine a further issue which was raised at the hearing of the appeal. However, as the issue was argued, it is useful to record the controversy, and some factors which may bear upon its resolution, in case a situation such as this occurs in another case.
After conviction, the Appellant's legal representatives arranged for him to be examined by Dr Richard Furst, forensic psychiatrist, for the purpose of the preparation of a report on sentence. Dr Furst interviewed the Appellant at the Parklea Correctional Centre on 12 March 2010. In the course of the interview, Dr Furst asked the Appellant about the offences of which he was convicted. Dr Furst's report dated 16 April 2010 records the following with respect to the first count:
"I asked Mr Raumakita about the offences he was recently convicted of. He said that on 13/08/07 he had used both 'ice' (about $50 worth) and cannabis (about 1 gram) prior to the offence. He said that he participated in the robbery 'to get money to buy drugs...and because I needed money to get by.' He told me that he had entered Australia on a Tourist Visa and did not have permission to work or claim Centrelink benefits. He said that he had to rely on his family for financial support, which made him feel stressed and low in mood at times. He attributed his use of 'ice' to the stress he would feel at times."
According to Dr Furst, a separate admission was made by the Appellant concerning the second count.
Dr Furst's report was tendered by the Appellant's counsel on sentence in the District Court and was referred to in the remarks on sentence of the sentencing Judge (at pages 8-13). The Appellant did not give evidence in the sentencing proceedings.
The Crown sought to read an affidavit of Dr Furst sworn 17 May 2011 before this Court, relying upon s.12(c) Criminal Appeal Act 1912 . The affidavit annexed the report dated 16 April 2010 and confirmed that the Appellant had given him the account of the offence of 13 August 2007 as set out above. Objection was taken to the affidavit on the ground of relevance.
The Crown submitted that this Court should have regard to the alleged admission by the Appellant in the event that the Appellant succeeded in his unreasonable verdict ground, with the evidence bearing upon one or other of the following issues:
(a) the application of the proviso under s.6(1) Criminal Appeal Act 1912 , with the Court concluding that, taking into account the alleged admission, no substantial miscarriage of justice had actually occurred so that the appeal ought be dismissed, or
(b) in determining to order a new trial under s.8 Criminal Appeal Act 1912 , rather than direct the acquittal of the Appellant under s.6(2) of that Act.
The Court was taken to a number of decisions where it was said that, after conviction by a jury, an appellant had confessed his guilt (in one way or another) prior to the hearing of an appeal against conviction: R v De-Cressac (1985) 1 NSWLR 381; R v Reid (NSWCCA, 13 September 1993, unreported); R v McCarthy and Ryan (1993) 71 A Crim R 395; R v Gudgeon (1995) 83 A Crim R 228; R v Bikic [2001] NSWCCA 537 and Cesan v The Queen [2008] HCA 52; 236 CLR 358.
If the point has been reached at the hearing of the present appeal, it would have been necessary to determine whether a post-conviction admission made prior to appeal may be taken into account by this Court in applying the s.6(1) proviso, so as to dismiss the appeal despite relevant error having been demonstrated at trial. The decision of this Court in R v De-Cressac would suggest, at the very least, that this Court would approach such a submission with considerable caution. This may be especially so if there was said to be a contest as to whether the admission was made. Here, it would seem that any contest would lie in the truthfulness of the admission, rather than the fact that it was made.
Consideration of the s.6(1) proviso directs attention to the evidence that was before the jury at trial: Cesan v The Queen at 393-395 [123]-[129].
The following statements of Hayne, Crennan and Kiefel JJ (Heydon J agreeing) in Cesan v The Queen at 395-396 [131] would also stand in the way of the Crown submission concerning the use of the proviso:
"Finally, some weight was given by the majority in the Court of Criminal Appeal to a letter written by Mr Cesan to the trial judge after the jury had returned a guilty verdict and before sentence was passed. The majority in the Court of Criminal Appeal considered that, in the letter, he admitted his guilt of the offence charged. The letter was written for the evident purpose of mitigating the sentence that was then to be passed upon Mr Cesan. To do other than accept the jury's verdict would have aggravated the sentence. No weight can be attached to what was said in the letter in deciding whether there was no substantial miscarriage of justice."
Before this Court, the Crown submitted respectfully (but with some justification) that the statement that to "do other than accept the jury's verdict would have aggravated the sentence" did not appear to conform with the principle that an accused person who contests the trial, whilst not entitled to mitigation for a plea of guilty, may not be penalised for the manner in which the defence was conducted: Siganto v The Queen [1998] HCA 74; 194 CLR 656 at 666-667 [30]-[34].
If this Court considers that a miscarriage of justice has occurred following conviction on indictment and the conviction is to be quashed, the Court may order a new trial where, having regard to all the circumstances, such miscarriage of justice can be more adequately remedied by an order for a new trial: s.6(2); s.8(1) Criminal Appeal Act 1912 .
Section 8(1) provides for the Court to have regard to "all the circumstances" , a phrase of considerable breadth. In The Queen v Taufahema [2007] HCA 11; 228 CLR 232 at 254 [49], Gummow, Hayne and Crennan JJ observed that one of the key "circumstances" referred to in s.8(1), and one of the key factors in assessing whether a new trial is an adequate remedy, is the public interest in the due prosecution and conviction of offenders. Their Honours observed, at 255 [51], in the context of that case, that an order for acquittal conflicted with the desirability of having the guilt or innocence of the accused person finally determined by a jury .
However, a little later, their Honours referred, at 256 [52], to the undesirability of the prosecution having an opportunity to present a new case at a retrial where the evidence had been insufficient at the first trial.
In an appropriate case, it may be considered relevant that the common law principle of finality of a jury verdict of acquittal has been altered to some extent by statute in this State in recent years. Section 107 Crimes (Appeal and Review) Act 2001 now permits the Crown to appeal from a directed acquittal on a ground that involves a question of law alone: R v JS [2007] NSWCCA 272; 175 A Crim R 108; R v PL [2009] NSWCCA 256; 261 ALR 265.
Further, Division 2 of Part 8 of the Crimes (Appeal and Review) Act 2001 (ss.99-106) permits the Crown, in an appropriate case, to apply to this Court for an order for retrial of a person following acquittal for an offence punishable by life imprisonment (which, of course, is not this case). Although these provisions have not been utilised as yet in this State, equivalent provisions have been applied in the United Kingdom, including cases where a post-acquittal admission is said to have been made: R v D [2006] EWCA Crim 1354; R v Miell [2007] EWCA Crim 3130; Hamer, "The Expectation of Incorrect Acquittals and the 'New and Compelling Evidence' Exception to Double Jeopardy" [2009] Crim LR 63 at 72-73.
In these ways, the law has changed in its approach to the finality of a verdict of acquittal following criminal trial by jury. What relevance (if any) such considerations may have to the application of ss.6(1), 6(2) and 8 Criminal Appeal Act 1912 will be for this Court to consider in another case on a future day.
As it happens, it is not necessary for this Court to consider these questions in the context of the present appeal. The Appellant has not cleared the first hurdle, in that he has not demonstrated that a miscarriage of justice occurred at trial. He has not demonstrated that the verdict on the first count was unreasonable or cannot be supported having regard to the evidence.
Orders
I propose the following orders:
(a) leave to appeal against conviction granted under s.5(1) Criminal Appeal Act 1912 ;
(b) appeal dismissed.
GARLING J : I agree with Johnson J.
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Decision last updated: 18 October 2013
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