Soars v The King

[2024] NSWCCA 218

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Soars v R [2024] NSWCCA 218

Hearing dates:

06 November 2024

Date of orders:

02 December 2024

Decision date:

02 December 2024

Before:

Bell CJ; Wright J; Chen J

Decision:

1.   Grant leave to appeal in respect of ground 1 of the draft Notice of Appeal.

2.   Dismiss ground 1 of the appeal.

3.   Otherwise, refuse leave to appeal.

Catchwords:

CRIME – appeals – appeal against conviction – miscarriage of justice – s 165(1)(d) of the Evidence Act 1995 (NSW) – where the Applicant contended that the Crown did not exclude the reasonable possibility his brother had committed the attack on the victim – whether the evidence of the Applicant’s brother was “evidence of a kind that may be unreliable” in the sense that it was given by a witness “who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding”

CRIME – appeals – appeal against conviction – unreasonable verdict – whether there was a reasonable possibility that a person other than the Applicant was responsible for the attack on the victim – where the DNA of the Applicant, the victim and a third person found on nunchucks used in the attack which were located in the Applicant’s room – where the Crown case relied on a large body of circumstantial evidence

CRIME – appeals – appeal against sentence – manifest excess – whether sentence was unreasonably or plainly unjust

Legislation Cited:

Crimes Act 1900 (NSW) s 33(1)(b)

Crimes (Sentencing Procedure) Act 1999 (NSW)
s 54A(2)

Criminal Appeal Act 1912 (NSW) s 6(1)

Evidence Act 1995 (NSW) s 165

Cases Cited:

Blair v The Queen [2022] NSWCCA 176

Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25

DL v R [2020] NSWCCA 164

DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194

Du Plessis v R [2024] NSWCCA 164

Elias v R; Issa v The Queen (2013) 248 CLR 483; [2013] HCA 31

GAR v R (No 2) [2010] NSWCCA 164

Jackson v R [2020] NSWCCA 230

JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528

Kaddour v R [2019] NSWCCA 90

M v The Queen (1994) 181 CLR 487; [1994] HCA 63

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25

MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53

Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221

Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12

Quinn v R [2023] NSWCCA 229

R v Baartman [2000] NSWCCA 298

R v Clark [2001] NSWCCA 494; (2001) 123 A Crim R 506

Stewart v R (2001) 52 NSWLR 301; [2001] NSWCCA 260

Category:

Principal judgment

Parties:

Jason Reginald Soars (Applicant)
The Crown (Respondent)

Representation:

Counsel:

S Kluss (Applicant)
C Curtis (Respondent)

Solicitors:

Ross Hill & Associate Solicitors (Applicant)
Office of the Director of Public Prosecutions (NSW) (Respondent)

File Number(s):

2021/00091366

Publication restriction:

Section 15A of the Children (Criminal Proceedings) Act 1987 (NSW) applies to the name of the witness IF and any information that may tend to identify them.

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

21 July 2022; 25 October 2023

Before:

Weinstein SC DCJ; McGrath SC DCJ

File Number(s):

2021/00091366

HEADNOTE

[This headnote is not to be read as part of the judgment]

Following a trial before a jury and Weinstein SC DCJ (the trial judge) in the District Court, the Applicant, Mr Jason Soars, was convicted on 21 July 2022 of one count of causing grievous bodily harm with intent to cause grievous bodily harm, contrary to s 33(1)(b) of the Crimes Act 1900 (NSW). The offence related to an incident which occurred on 31 March 2021 after 10.28pm in which Mr Stevan Thoms (the victim), who was walking home from the Railway Hotel in East Maitland, was struck by a man wielding nunchucks out the front of a property located in Anne Street, East Maitland (the Property). At the time of the attack, the Applicant was living in the Property with his brother, Mr Lyndon Soars (Lyndon), mother and nephew, IF.

The Crown case against the Applicant at trial relied on a number of circumstances which, when taken together, were said to exclude the reasonable possibility that anyone other than the Applicant could have been responsible for the attack. Those circumstances included the fact that the nunchucks used in the attack, which were found in a room in the Property that the Applicant had been using as a bedroom, bore his DNA as well as that of the victim and “an unknown unrelated individual”, the fact that the victim’s mobile phone was also found in the same room in the Property, descriptions of the assailant offered by third party eyewitnesses that were consistent with the Applicant’s appearance and the fact that the Applicant left the Property by car very shortly after the attack, just after 10.30pm on a Wednesday night, and drove to Queensland.

The Crown also relied upon the evidence of Lyndon to the effect that he heard a voice outside the Property on the night of 31 March 2021 which “sounded like” the Applicant. The Applicant’s trial counsel applied for a warning to be issued to the jury pursuant to s 165(1)(d) of the Evidence Act 1995 (NSW) (the Evidence Act) in respect of the reliability of that evidence on the basis that Lyndon was a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceedings. The trial judge declined to give the jury such a warning on the basis that the evidence was not of a kind that may be unreliable and because, taking into account all of the evidence in the case, Lyndon could not have reasonably been supposed to have been criminally concerned in the events giving rise to the proceedings.

The Applicant’s case at trial was that the Crown had not excluded the possibility that Lyndon, or IF, was responsible for the attack. The Applicant relied upon the accounts of third-party eyewitnesses who were driving along Anne Street around the time of the attack and observed a man with “short hair” attempting to enter a white vehicle belonging to Lyndon. It was put that the man described by these witnesses met the description of Lyndon, rather than the Applicant. This was despite the fact that, consistent with evidence given by Lyndon in the prosecution’s case, the Applicant had said on a number of taped telephone calls that Lyndon was asleep at the time of the attack.

On 25 October 2023, the Applicant was sentenced by McGrath SC DCJ (the sentencing judge) to 9 years’ imprisonment commencing on 27 April 2021 and expiring on 26 April 2030, with a non-parole period of 6 and a half years expiring on 26 October 2027.

The Applicant sought leave to appeal from his conviction on the basis that the trial judge failed to give the jury a warning pursuant to s 165(1)(d) of the Evidence Act as to the unreliability of the evidence of Lyndon and that the conviction was unreasonable in the sense that it was not supported by the evidence and that the Crown did not exclude the reasonable possibility that another person was responsible for the attack, particularly Lyndon and/or the third person whose DNA was identified on the nunchucks. The Applicant also sought leave to appeal against his sentence on the basis of manifest excess.

The Court held (Bell CJ, Wright J and Chen J), granting leave to appeal in relation to ground 1 of the draft Notice of Appeal, dismissing the appeal on ground 1 and otherwise refusing leave to appeal:

1. Based upon all of the evidence, it was open to the trial judge to form the view that Lyndon could not have reasonably been supposed to have been criminally concerned in the events giving rise to the proceedings. There was nothing specially in the Court’s knowledge that called for a warning to the jury as to the nature of Lyndon’s evidence nor was there a danger of the jury overestimating the weight of Lyndon’s evidence. The fact that the Applicant’s trial counsel had suggested that Lyndon was the perpetrator of the offence did not bring him within the category of person described by s 165(1)(d) of the Evidence Act: [24]-[26].

R v Baartman [2000] NSWCCA 298, Stewart v R (2001) 52 NSWLR 301, Kaddour v R [2019] NSWCCA 90, Blair v The Queen [2022] NSWCCA 176, GAR v R (No 2) [2010] NSWCCA 164, R v Clark [2001] NSWCCA 494, referred to.

2. Observations as to the need for counsel to provide assistance to the Court in relation to unreasonable verdict grounds of appeal by articulating arguments as to why it is contended that a verdict was unreasonable in the sense of not being open to the jury rather than merely asserting that to be the case: [31].

3. On the whole of the evidence, and considering all of the circumstances together, it was well open to the jury to be satisfied beyond reasonable doubt that the Applicant was guilty, and there was no reasonable possibility that anyone other than the applicant could have been responsible for the attack on the victim: [34].

Quinn v R [2023] NSWCCA 229, M v The Queen (1994) 181 CLR 487, MFA v The Queen (2002) 213 CLR 606, Pell v The Queen (2020) 268 CLR 123, Dansie v The Queen (2022) 274 CLR 651, referred to.

4. While the sentence imposed was towards the sterner end of the range of available sentences, it was not so long as to constitute a crushing sentence when regard was had to the offence committed by the Applicant, the maximum penalty and all objective and subjective factors which should be appropriately brought into account on sentence: [60].

Du Plessis v R [2024] NSWCCA 164, JM v R [2014] NSWCCA 297, DL v R [2020] NSWCCA 164, Obeid v R (2017) 96 NSWLR 155, Markarian v The Queen (2005) 228 CLR 357, Elias v R; Issa v The Queen (2013) 248 CLR 483, Jackson v R [2020] NSWCCA 230, referred to.

JUDGMENT

1. THE COURT: Following a trial before a jury and Weinstein SC DCJ (the trial judge) in the District Court, commencing on 11 July 2022, the Applicant, Mr Jason Soars, was convicted on 21 July 2022 of one count of causing grievous bodily harm with intent to cause grievous bodily harm, contrary to s 33(1)(b) of the Crimes Act 1900 (NSW).

2. The offence related to an incident which occurred on 31 March 2021 after 10.28pm in which Mr Stevan Thoms (the victim), who was walking home from the Railway Hotel in East Maitland, was struck by a man wielding nunchucks out the front of a property located in Anne Street, East Maitland (the Property). At the time of the attack, the Applicant was living in the Property with his brother, Mr Lyndon Soars (Lyndon), mother and nephew, IF. The Applicant and the victim were completely unknown to each other at the time of the offending.

3. The victim’s significant and life-threatening injuries were summarised in a statement of agreed facts. It was conceded by the Applicant at trial that the victim’s injuries were sufficient to constitute grievous bodily harm.

4. The Crown case against the Applicant at trial was largely circumstantial. It relied on a number of circumstances which, when taken together, were said to exclude the reasonable possibility that anyone other than the Applicant could have been responsible for the attack upon the victim. Those circumstances included the fact that the nunchucks used in the attack, which were found in a room in the Property that the Applicant had been using as a bedroom, bore his DNA as well as that of the victim, the fact that the victim’s mobile phone was also found in the same room in the Property, descriptions of the assailant offered by third party eyewitnesses that were consistent with the Applicant’s appearance and the fact that the Applicant left the Property by car very shortly after the attack, just after 10.30pm on a Wednesday night, and drove to Queensland.

5. The Crown also relied upon the evidence of Lyndon to the effect that he heard a voice outside the Property on the night of 31 March 2021 and that it “sounded like” the Applicant. The Applicant’s trial counsel applied for a warning to be issued to the jury pursuant to s 165 of the Evidence Act 1995 (NSW) (the Evidence Act) in respect of the reliability of that evidence on the basis that Lyndon was a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceedings. The trial judge declined to give the jury such a warning on the basis that the evidence was not of a kind that may be unreliable and because, taking into account all of the evidence in the case, Lyndon could not have reasonably been supposed to have been criminally concerned in the events giving rise to the proceedings.

6. A trace swab was taken from the handle of the nunchucks found in the Property for DNA analysis. That analysis revealed that there were three contributors to the swab, namely the victim, the Applicant and “an unknown unrelated individual”. The Applicant did not contest the presence of his own DNA on the nunchucks. Ms Rebecca Williams (forensic scientist) gave evidence that she could not exclude the possibility that the third contributor to the DNA profile recovered from the handle of the nunchucks was an individual related to the Applicant but that “there is so little information in that profile that I can’t compare it to anybody” and that that was the reason why she could not exclude that possibility.

7. The Applicant’s case at trial was that the Crown had not excluded the possibility that Lyndon, or IF, was responsible for the attack. The Applicant relied heavily on the accounts of Mr Sam Hackworthy and Ms Jessica Dowdell who were driving down Anne Street at around the time of the attack. Their evidence was to the effect that they saw the victim lying on the right-hand side of the road opposite the Property and that, in the vicinity of the victim, was a man with “short hair” wearing jeans and a light coloured t-shirt. Mr Hackworthy’s evidence was also that he saw the man attempting to enter a white vehicle parked at the front of the Property which belonged to Lyndon, although in his statement to police he had only said that the man was moving towards the vehicle. It was the Applicant’s submission that the man described by Mr Hackworthy and Ms Dowdell met the description of Lyndon, rather than the Applicant. This was despite the fact that the Applicant had said on a number of taped telephone calls that Lyndon was asleep at the time of the attack (which was also Lyndon’s evidence, he having been called as a witness in the prosecution’s case). Parked close to the white car at the front of the Property was a silver hatchback which was the vehicle in which the Applicant left the Property very shortly after the victim was attacked.

8. On 25 October 2023, the Applicant was sentenced by McGrath SC DCJ (the sentencing judge) to 9 years’ imprisonment commencing on 27 April 2021 and expiring on 26 April 2030, with a non-parole period of 6 and a half years expiring on 26 October 2027.

9. By way of a draft Notice of Appeal filed on 20 August 2024, the Applicant sought leave to appeal from his conviction on the basis that the trial judge failed to give the jury a warning pursuant to s 165 of the Evidence Act as to the unreliability of the evidence of Lyndon and that the conviction was unreasonable in the sense that it was not supported by the evidence and that the Crown did not exclude the reasonable possibility that another person was responsible for the attack, particularly Lyndon and/or the third person whose DNA was identified on the nunchucks.

10. In the event that his appeal against conviction is unsuccessful, the Applicant also sought leave to appeal against his sentence on the basis of manifest excess.

Ground 1

11. By ground 1 of the appeal, the Applicant argued that the trial judge erred in failing to warn the jury, pursuant to s 165 of the Evidence Act, that the evidence of Lyndon may be unreliable.

12. Relevantly, s 165 provides:

“(1)   This section applies to evidence of a kind that may be unreliable, including the following kinds of evidence—

…

(d)   evidence given in a criminal proceeding by a witness, being a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding…

(2)   If there is a jury and a party so requests, the judge is to—

(a)   warn the jury that the evidence may be unreliable, and

(b)   inform the jury of matters that may cause it to be unreliable, and

(c)   warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it.

(3)   The judge need not comply with subsection (2) if there are good reasons for not doing so.

…”

13. The very short submission made by defence counsel prior to the summing up in support of such a warning being issued is revealed in the following exchange with the trial judge:

“HIS HONOUR: So how is he reasonably be supposed to be criminally concerned with the events giving rise to the proceedings?

BOYD: The thing that puts it in that category in my submission is - beyond the mere assertion to him in cross-examination that he's criminally concerned, beyond that - is the observations of … the witnesses Jessica Dowdell and Sam Hackworthy of a man standing over the victim when they drove down the street, seeing that man run towards Lyndon's car and, at least in Mr Hackworthy's case, he's given evidence of seeing him try to open the car, and the descriptions that each of those give as - and I accept they're somewhat vague - but on one view of it, … the jury would be entitled to form the view that that description is consistent with Lyndon's appearance ….

HIS HONOUR: Well, there has to be evidence of a kind that may be unreliable. It goes to the quality of the evidence.

BOYD: Yes, and the unreliability is that someone in Lyndon's position, if he could reasonably be supposed to have been criminally concerned in the assault on the victim, may want to shift blame from himself onto someone else or tend to play down his own part and play up the roles of others.”

14. On 19 July 2022, the trial judge gave the following judgment in respect of the application for a s 165 warning to be given to the jury in relation to the evidence of Lyndon:

“An application was made by Mr Boyd for a warning about the evidence of Lyndon Soars pursuant to s 165(2)(d) of the Evidence Act. [The reference to s 165(2)(d) was presumably intended to be to s 165(1)(d).] He submitted that Mr Soars’s evidence is of a kind that may be unreliable as he is a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceedings. I decline to give the jury such a warning.

The reasons for me not doing so is that in my opinion, his evidence is not evidence of a kind that may be unreliable because of what is contained in subs (d) and, in particular, taking into account all the evidence in the case, Lyndon Soars could not have reasonably [been] supposed to have been criminally concerned in the events giving rise to the proceedings.

Having said that, I accept that that is a matter that will be alluded to in defence counsel’s closing and that will … properly be addressed by him rather than me.” (Emphasis added.)

15. Ms Kluss, who appeared for the Applicant, accepted that she would need to demonstrate that not only did the trial judge err in not giving the s 165 direction but that his failure to do so resulted in a miscarriage of justice.

16. In our view, the trial judge did not err in declining to give the s 165 direction and, even if this were not so, no miscarriage of justice resulted.

17. Before turning to consider his Honour’s direction, it is first appropriate to review some of the leading authorities concerning s 165 of the Evidence Act.

18. The purpose of s 165 of the Evidence Act was articulated by Kirby J in R v Baartman [2000] NSWCCA 298 at [62]:

“In the nature of things, evidence given by all witnesses may be unreliable. Evidence is necessarily dependent upon observation and recollection. Both are fallible. However, s 165 is not dealing with unreliability in this sense. Rather, the need for a warning typically arises either because the jury needs to be acquainted with the accumulated experience of courts in dealing with certain types of evidence, or because there is the danger that the jury may over-estimate the probative value of certain evidence …”

19. In Stewart v R (2001) 52 NSWLR 301; [2001] NSWCCA 260 (Stewart), Howie J said the following as to the scope of s 165 of the Evidence Act:

“[95]   Whether the evidence in respect of which a request for a warning is made comes within one of the designated categories will be a matter for the trial judge to determine. It is a discretionary judgment which will generally involve a question of fact: R v Flood [1999] NSWCCA 198 at [14]; R v Taranto [1999] NSWCCA 396 at [2], [38]. The section is concerned with the possibility of unreliability: R v Flood (at [3])… A warning is only required where there is a real possibility that the matter, which causes the evidence to fall into one of the designated categories, actually affects the reliability of the evidence before the court. The trial judge is entitled to come to the view that the reliability of the evidence is not affected by a matter which would otherwise bring the evidence within the section: R v Flood (at [10]).

…

[98]   Where a matter which might adversely affect the reliability of evidence in the trial would be readily understood and appreciated by a jury because it falls within their general experience and understanding and where the court has no special knowledge about the matter or no reason to doubt that the jury will appropriately assess its weight, then the evidence is not ‘of a kind that may be unreliable’ and the section does not apply. Consistently with the common law, the Commission’s proposals, and the decision in R v Baartman, matters of a general nature that might affect the reliability of any kind of evidence adduced in a trial do not of themselves bring the evidence within the scope of the section.

…

[101] … when a request is made for a warning under the section, the trial judge must first determine whether the evidence, if it does not fall within one of the designated categories, is of the class, or type, of evidence about which a jury might be misled in making an assessment of whether to accept it or in evaluating its worth. The section will apply to the evidence if the trial judge considers that the court has some special knowledge or experience about that kind of evidence which the jury may not possess and which may affect its reliability, or because it is the kind of evidence to which a jury may attribute more weight than it really deserves. The risk of the jury giving too much weight to that kind of evidence may arise because of the nature of the evidence itself or because of the significance which may be attached to it by the jury having regard to the evidence in the context of the trial as a whole. If the evidence does not intrinsically have the potential to mislead the jury or if there is nothing about the trial which would suggest the jury may be deflected or misled in evaluating the evidence, then it is not within the scope of the section and a warning under s 165 is not necessary.”

See, also Kaddour v R [2019] NSWCCA 90 at [112]-[115].

20. Howie J went on to say the following as to the scope of s 165(1)(d) of the Evidence Act against the background of the pre-existing common law position which provided for “accomplice warnings”:

“[125] The term ‘accomplice’ is not used in s 165(1). Section 165(1)(d) refers to a witness ‘who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding’. Whether the witness falls into that category is initially a matter of fact to be determined by the trial judge, although a finding that there is no evidence that the witness falls into that category is a question of law …

[126]   It may be preferable that a trial judge avoids using the word ‘accomplice’ during his or her warnings to the jury. The use of that word may convey, inadvertently, that the trial judge believes that the witness is an accomplice of the accused and, therefore, that the trial judge has formed the view that the accused is guilty of the charge before the jury.

[127]   In respect of accomplices or persons otherwise implicated in the offence before the jury, the matters which were considered by the common law as rendering their evidence suspect and which gave rise to the need for a warning were two-fold: firstly, they may have a reason to implicate another person even to the extent of implicating a person who is in fact innocent of the crime and, secondly, they may tend to exaggerate the role of another while minimising their own involvement and fabricate evidence to achieve this end: R v McLachlan [1999] 2 VR 553 at 562; R v Kendrick [1997] 2 VR 699 at 705; R v Downey (1997) 97 A Crim R 41 at 44; R v Ware (1994) 73 A Crim R 17 at 28.

[128]   As the trial judge in the present case told the jury, these are the matters within the special experience of the courts. Therefore, they are matters which should be drawn to the attention of the jury whenever a warning under the section is given in respect of evidence of a witness falling within this category…”

See, also Blair v The Queen [2022] NSWCCA 176 (Blair) at [74]-[77] and GAR v R (No 2) [2010] NSWCCA 164 at [99]-[102].

21. In Stewart at [16], Spigelman CJ said the following:

“The word ‘kind’ is a word of a breadth and generality which it may be appropriate to read down. Any reason that could be advanced for questioning the reliability of evidence in the specific circumstances of a case can be stated at different levels of generality. Once stated at a level of generality higher than the specific facts of a particular case, such a reason could satisfy the description of ‘a kind’ of evidence. That would have the result that in every case in which an assertion of lack of reliability is made, the compulsory provisions for a warning on request in s 165(2) would apply, subject only to
the exception in s 165(3). The acknowledgment, in s 165(5), that there will be
other circumstances in which a judge will be required to warn or inform the
jury with respect to these matters, suggests that the word ‘kind’ must be read
down in some way.” (Emphasis in original.)

His Honour found it unnecessary to express a final view as to the extent to which the pre-existing common law position might inform the interpretation of s 165(1)(d), or as to “the true scope of the introductory words ‘evidence of a kind that may be unreliable’” on the basis that the witness in Stewart fell clearly within the provisions of s 165(1)(d) in that he was, by his own admission and conviction, “criminally concerned in the events giving rise to the proceeding”: at [18]-[19].

22. In R v Clark [2001] NSWCCA 494; (2001) 123 A Crim R 506, the Court considered whether the evidence of a witness to whom an accused person had confessed, but who concealed that confession for a period of time, was evidence given by a witness “criminally concerned in the events giving rise to the proceeding” and of an unreliable kind within the meaning of s 165(1)(d) of the Evidence Act. Heydon JA (with whom Dowd and Bell JJ agreed) reasoned as follows:

“[66] Let it be assumed that Mr Brown could have been charged as an accessory after the fact (which is questionable). Let it be assumed that he feared being charged with concealing a serious offence or with some crime in the nature of misprision of felony (which was not explored). Let it be assumed that his concealment of a serious offence caused him to fall within the language of s 165(1)(d) (which is a controversial construction). Even on those assumptions, it was not in Mr Brown's interests falsely to fasten the death of the deceased onto the appellant. It would have been in his interests as much as those of his friend, the appellant, if the deceased had died of natural causes or at someone else's hand. He could gain nothing by establishing the appellant's guilt. He could bring nothing but trouble upon himself by doing so. There was nothing to suggest that his evidence fell within a ‘kind’ that was unreliable.

…

[70] As far as the appellant's argument focuses on the language of par (d) of s 165(1) there is no evidence that Mr Brown fell within those words if they are construed as limited to events up to the moment when the crime charged was complete, namely the death of the deceased on 7 February 1999. If that language extends to events after that time, which is a controversial question that need not now be decided, while Mr Brown may reasonably be supposed to have contravened s 316(1), it is arguable that his silence was not an event giving rise to the proceedings, but, as it were, a ‘non event’ tending to prevent them from arising. However, even if Mr Brown's silence brings him within s 165(1)(d), or even if he is within that paragraph on the ground that he may have been an accessory after the fact by telling the appellant to behave normally, the language of paragraph (d) must be read in the light of the opening words of s 165. The issue is not limited to whether Mr Brown is a witness within the language of paragraph (d), but whether the evidence which he, being a s 165(1)(d) witness, gave was ‘of a kind that may be unreliable’. That is, the opening words of s165(1) qualify paragraph (d).

…

[73] Beyond pointing to potential defects which the trial judge more than adequately highlighted, the appellant did not explain which relevant ‘kind’ Mr Brown fell into. He did not explain how the indemnity made him unreliable, or how the characteristics which arguably placed him within paragraph (d) of s 165(1) made him unreliable. It cannot be the law that the evidence of every particular witness who receives an indemnity, or answers the language of s 165(1)(d), automatically and without any further inquiry must be held to be within a particular ‘kind’ of evidence that may be unreliable…” (Emphasis in original.)

23. In Blair, the Court considered whether the evidence of a complainant who had an involvement in drug supply and/or general criminal activity fell within the scope of s 165(1)(d) of the Evidence Act. Beech-Jones CJ at CL said (at [5]):

“The text of s 165(1)(d) requires focus on the ‘events giving rising to the proceeding’. In one sense this can be contrasted with simply being involved in the offence the subject of the proceeding, in that s 165(1)(d) can be engaged by a witness who might not strictly be criminally concerned with the very offence charged, but who might nevertheless be supposed to be criminally concerned in the criminal endeavour that gives rise to the offences charged. However, whatever the precise scope of s 165(1)(d), it does not extend to the complainant in this case. In this case, the ‘events giving rise to the proceeding’ was the assault, detention and robbery of the complainant.”

24. In our view, it was open to the trial judge to form the view that Lyndon could not have reasonably been supposed to have been criminally concerned in the events giving rise to the proceedings based upon all the evidence in the case, including:

• the evidence of the Applicant, contained in telephone transcripts of calls made by him from gaol, that Lyndon was asleep at the time that the Applicant left Anne Street very shortly after the victim had been observed lying on the street by Mr Hackworthy and Ms Dowdell;

• the corroboration of this by IF;

• Lyndon’s own evidence as to why he was asleep, namely his need to rise in the very early hours of the morning to go to his early morning shift at work;

• the Applicant’s admission on a recorded phone call with his mother that he had picked up the victim’s phone and put it inside the house;

• the fact and timing of the Applicant’s flight from the Property based on the implausible explanation that he was beginning a journey to Queensland shortly after 10.30pm for a job he was not formally offered for a further week, and which he did not commence for a further three weeks;

• what defence counsel accepted to be the “somewhat vague” evidence of Mr Hackworthy and Ms Dowdell as to what they observed as they drove down Anne Street; and

• the speculation that, because Mr Hackworthy and Ms Dowdell had observed someone with short hair, it was Lyndon (in circumstances where it was open to infer from a photograph of the Applicant taken a month later that he also had very short hair at the time of the attack).

25. The jury did not need to be warned that Lyndon was the Applicant’s brother and lived in the same house as that in which the nunchucks and the victim’s phone were found. That was common ground and an unremarkable fact. There was nothing specially in the Court’s knowledge that called for a warning to the jury as to the nature of Lyndon’s evidence nor was there a danger of the jury overestimating the weight of Lyndon’s evidence.

26. The Crown submitted, and we accept, that the fact that the Applicant’s trial counsel had suggested that Lyndon was the perpetrator of the offence did not bring him within the category of person described by s 165(1)(d) of the Evidence Act. The Applicant’s reliance upon the fleeting observations of Ms Dowdell and Mr Hackworthy from their car as it drove along Anne Street of a man with short hair approaching and/or attempting to enter a white car on the Property were also insufficient to establish that Lyndon might reasonably be supposed to have been criminally concerned in the events, when viewed in the context of all of the evidence that had been received by the time application was made for a s 165 direction.

27. As to Lyndon’s evidence that he heard a voice from his bed which sounded like that of the Applicant, Lyndon’s evidence was not of a kind that carried dangers warranting a warning and/or made it potentially unreliable: in fact, his evidence sought to diminish the possibility that the voice he heard was that of his brother, the Applicant. He said under cross examination:

“I don’t know who I heard. It could have been Jason. It could have been other people. We get a lot of drunk people walking our street because there’s a pub just 200 metres – two pubs actually. One 200 metres up the road and one 500 metres up the road. That’s what I’m trying to say. It could have been anyone’s voice. It sounded similar to Jason’s voice but it could have been anyone’s voice. Is what I’m saying. And I’m not sure whether it was a couple of voices or just one voice at the time. It’s very vague in my memory.”

28. There was no error in the trial judge’s decision not to give a s 165 warning and, even if such a warning should have been given, there was no miscarriage of justice. Lyndon’s evidence was of limited significance. As submitted by the Crown:

“The powerful body of circumstantial evidence against the applicant was such that the absence of the direction concerning the evidence of Lyndon Soars could not have realistically affected the verdict in this case. That is particularly so in circumstances where the defence contention that Lyndon Soars had a motive to lie to cover his own involvement in the offence was clearly articulated to the jury and addressed by both parties in closing addresses, and by the trial judge in summing up.”

29. The same powerful body of circumstantial evidence provides an answer to ground 2 of the appeal which was expressed in terms that the conviction was “unsafe and unsatisfactory and not supported by the evidence.” It is to that ground that we now turn.

Ground 2

30. The entirety of the Applicant’s written submissions under ground 2 were as follows:

“The conviction of the appellant is unsafe and in all the circumstances the crown did not exclude the reasonable possibility that another person was responsible for the assault particularly given the third person identified on the num-chuks.

The law to be applied was summarised by the High Court in Dansie v The Queen (2022) 96 ALJR 728; [2022] HCA 25 at [7]-[15], by reference in particular to the decision in M v The Queen (1994) 181 CLR 487; [1994] HCA 63.

The question which the appeal court must ask is whether on the whole of the evidence it was open to the trier of fact to be satisfied beyond reasonable doubt that the accused was guilty.

The court must decide by making its own independent assessment of the evidence. The court is to determine for itself whether the evidence was sufficient in nature and quality to eliminate any reasonable doubt that the accused is guilty of the offence.

In the circumstances of the trial there is little if any advantage in the jury’s advantage of seeing and hearing the witnesses.

The appellant contends that a miscarriage of justice has occurred.”

31. A submission of this kind is wholly unsatisfactory. Apart from the passing reference to the trace of a third party’s DNA on the nunchucks, this “submission” was bereft of any argument at all, and that position was scarcely advanced in oral submissions. If counsel wish to contend that a jury verdict is unreasonable within the meaning of s 6(1) of the Criminal Appeal Act 1912 (NSW), the Court expects that counsel will be in a position meaningfully to assist the Court and not simply submit, as was done in the present case in response to a question as to what was relied upon in support of the ground, “The Court has to make its own independent assessment of the evidence.” Counsel should not settle a Notice of Appeal including such a ground unless they themselves have given conscientious attention to whether or not such an argument can responsibly be made, and articulated arguments as to why a verdict was unreasonable in the sense of not being open to the jury.

32. The principles applicable in respect of unreasonable verdict appeals were summarised in Quinn v R [2023] NSWCCA 229 at [82]-[86]:

“It is uncontentious that this Court should approach its assessment of whether the jury’s verdict was unreasonable by asking itself whether it was open to the jury to be satisfied beyond reasonable doubt, on the whole of the evidence, that the Applicant was guilty of the offence charged. In answering that question, the Court must conduct its own independent assessment of the evidence: M v The Queen (1994) 181 CLR 487 at 492-493; [1994] HCA 63 (M v The Queen).

The Court in Coghlan v The Queen (2020) 267 CLR 654; [2020] HCA 15 at [55] held that in substantially circumstantial cases, the Court must:

‘weigh all the circumstances in deciding whether it was open to the jury to draw the ultimate inference that guilt has been proved to the criminal standard. That inference will not be open if the prosecution has failed to exclude an inference consistent with innocence that was reasonably open.’

Consistent with Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 (Pell) at [39], in assessing the whole of the evidence, the Court should also proceed upon the assumption that a witness’ evidence was assessed by the jury to be credible and reliable, but then examine the record of the trial to see whether:

‘notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.’

Setting aside a jury’s verdict as unreasonable is a ‘serious step’ which should not be taken without the Court having regard to the ‘advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial’: The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [65]. If the Court entertains a reasonable doubt that the accused is guilty on the basis of its assessment of the evidence, it is only where the jury’s advantage in having seen and heard the evidence is capable of resolving that doubt that the Court may conclude that no miscarriage of justice has occurred: Libke v the Queen (2007) 230 CLR 559; [2007] HCA 30 at [113], M v The Queen at 494.

The scope of the advantage that the jury will have had over this Court by reason of having seen and heard the evidence at trial will vary based on matters such as the form in which the evidence was adduced and the nature of the issues at trial: Dansie v The Queen (2022) 96 ALJR 728; [2022] HCA 25 at [17]. A tribunal of fact (in this case, the jury) must be taken to have enjoyed a greater advantage over a court of criminal appeal where evidence was given in person and was the subject of sustained cross examination: Slattery v R [2023] NSWCCA 117 at [119].”

33. Key features of the evidence in the present case were as follows:

• the victim’s evidence that, as he was walking down Anne Street, he saw a man in the backyard of the Property;

• the victim’s DNA was found on the nunchucks;

• the Applicant’s DNA was also found on the nunchucks;

• the trace of a third person’s DNA on the nunchucks, contrary to the Applicant’s submissions, could not be said to be that of a relative of the Applicant’s;

• the nunchucks belonged to the Applicant and were found in the room in the Property in which he slept, as was the victim’s mobile phone;

• in a telephone transcript, the Applicant admitted picking up the mobile phone in the driveway to the Property and putting it inside (a fact that negatived the defence case that Lyndon could have placed it there to implicate the Applicant);

• the Applicant’s evidence, corroborated by IF, that his brother, Lyndon, was in bed at the time of the attack, corroborated by Lyndon’s own evidence to that effect as well as his evidence that he heard a voice outside that sounded like the Applicant’s (and noting that the jury had the benefit of observing Lyndon give his evidence);

• the observations of Ms Dowdell from the vantage point of the car in which she was a passenger of a man with short hair wearing jeans moving from the victim to the verandah of the Property in which the Applicant was residing;

• the observations of Mr Hackworthy of the man moving about frantically trying to open a car door parked at or outside the Property; and

• the Applicant’s flight from the Property in order to drive to Queensland in circumstances already described, namely almost immediately after the victim had been attacked and purportedly for a job which he did not commence for three weeks. The temporal proximity was established by the evidence of a third party witness, Ms Donna Eckford, who heard and saw the Applicant’s car speeding away not long after the 000 calls had been placed following the sighting of the victim on the road and before the ambulance arrived in Anne Street.

34. Following our careful and independent review of the whole of the evidence, and considering all these circumstances together, it was, in our opinion, well open to the jury to be satisfied beyond reasonable doubt that the Applicant was guilty, and there was no reasonable possibility that anyone other than the Applicant could have been responsible for the attack on the victim: M v The Queen (1994) 181 CLR 487; [1994] HCA 63; MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53; Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12; Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25.

35. It follows that, if leave to appeal were granted, ground 2 of the appeal would be rejected. Given the lack of a sufficient basis to support ground 2, the appropriate course is to refuse leave to appeal in respect of ground 2.

The sentence appeal

36. The Applicant also sought leave to appeal against the sentence imposed by the sentencing judge of 9 years’ imprisonment, commencing on 27 April 2021 and expiring on 26 April 2030, with a non-parole period of 6 and a half years expiring on 26 October 2027. The only ground of appeal relied upon was that the sentence was manifestly excessive.

Remarks on Sentence

37. There was no dispute before the sentencing judge that a sentence of imprisonment to be served by way of full-time custody was the appropriate outcome: at ROS 17.

38. As to the objective gravity of the offending, the sentencing judge held (at ROS 5-6) that the victim’s injuries were “life-threatening” but that the “extent of injuries sustained by the victim is of great significance … but not solely determinative.” His Honour went on to consider that the offending involved “a sustained attack … when armed with an objectively serious weapon on an unarmed man who was going about his own business”, the use of metal nunchucks to the head and body of the victim, “no evidence of any planning or pre-meditation” and “one continuous course of attack in one burst of offending for a short period of time, although during that short period of time, it was sustained.” The sentencing judge also took into account, as elevating the objective seriousness of the offending, the fact that the Applicant “pretty well immediately departed from the scene” in circumstances where the “victim must have been, as a result of his attack, clearly, and obviously to him, seriously injured.” His Honour additionally noted the “profound” effect of the offending on the victim who has ongoing physical and psychological injuries that have impaired his ability to care for himself and obtain meaningful employment: at ROS 7.

39. The sentencing judge ultimately found that the offence was “a very objectively serious example of such an offence”, “in the upper end of the mid-range of objective offending” and “a very serious example of such offending”: at ROS 7.

40. His Honour next considered relevant statutory aggravating features. The sentencing judge took into account the fact that the Applicant was on a community corrections order at the time of the offending. However, his Honour did not “double count” the Applicant’s use of a weapon as a statutory aggravating factor, nor did he find that the offence involved the infliction of “gratuitous cruelty”. The sentencing judge found that, “to a limited extent”, the fact that the victim was left on a “relatively busy road” was an aggravating factor: at ROS 7-8.

41. At ROS 8, the sentencing judge noted that the Applicant had denied the offending and was thus disentitled to any “discount for remorse”.

42. As to the Applicant’s subjective circumstances, it was held that “to the extent general deterrence may play a slightly lesser role, protection of the community does need an elevated role in this sentencing exercise”: at ROS 15.

43. At ROS 13-14, the sentencing judge reasoned as follows in respect of the Applicant’s mental health conditions:

“…Mr Boyd does make the point that Court can be satisfied to the extent required that Mr Soars suffers from post-traumatic stress disorder symptomology and a bipolar disorder cannot be ruled out, such that in those circumstances, and on application of the De La Rosa principles, he would be a less suitable, but not unsuitable vehicle, for general deterrence and also, I might add, principles of retribution and denunciation, because he would not be a good medium through which to deter others who are not burdened with his particular mental conditions. This might result in some moderation of the sentence that would otherwise be imposed.

In this regard, whilst this may be the case, given the uncertainty as to the circumstances in which the offence was committed and the inability to draw any link between mental health disability and the commission of the offence, in all the circumstances, the Court would have to have greater regard to the purpose of sentencing of protection of the community from further offending by Mr Soars, which is elevated in all the circumstances.”

44. His Honour was unable to find whether the offending was committed under the influence of drugs. Although the sentencing judge accepted that this would help explain “an otherwise inexplicable outburst of extremely serious violence directed against an innocent member of the community unknown to him”, his Honour found that this could not be taken into account as a mitigating circumstance: at ROS 14-15.

45. The sentencing judge took into account the circumstances of the Applicant’s early life, “particularly the difficulties of his upbringing, his experience of sexual abuse as a child, to the extent that the Court is aware of it, and the circumstances in which he was exposed to the murder of his brother’s girlfriend at Maitland when a young person, all of which would have been traumatic for a young child and would have led to mental health sequela and disruptions of his life”. His Honour also noted “the extended periods of time for which he has been able to live as an apparently pro-social member of the community” (at ROS 15) as well as the Applicant’s “relatively limited criminal history” which was constituted by “relatively minor” offences separated by “many years” all of which were dealt with by fines and community corrections orders: at ROS 8, 10.

46. The sentencing judge also took into account the fact that the Applicant had been on remand for a lengthy period of time and was treated as a person of suspicion in custody because of his age as well as his “more onerous … experience in custody as a result of the COVID pandemic”: at ROS 16.

47. The sentencing judge then held, with reference to the certificates of courses completed by the Applicant in custody, that the Applicant was “open to receiving treatment for … his complex mental health needs” and that his rehabilitation prospects “while perhaps guarded, are better than they might otherwise have [been] in circumstances where he denies involvement in the offending”: at ROS 17.

48. His Honour (at ROS 17) noted “the combination of factors” being that:

“At the age of 53, this is Mr Soars’ first custodial sentence. He does have complex mental health needs and will need a lengthy period of supervision upon release. What the Court has to balance is, accepting that a finding [of] special circumstances, which is a discretionary finding [that] ought be made in this case, whether the length of sentence necessary for the objective seriousness of his offending will, of itself, in application of the statutory ratio, provide a sufficient period of supervision.”

49. In imposing a sentence of 9 years’ imprisonment with a non-parole period of 6 and 6 months, the sentencing judge noted that “special circumstances have been found, and some allowance has been made to enable a period of two-and-a-half years on supervision”: at ROS 18.

50. None of the sentencing judge’s findings or assessments was challenged and it was not submitted that his Honour made any errors of principle in determining the sentence.

Submissions

51. The core of the Applicant’s submissions in relation to manifest excess was that the sentence was “simply too long” especially since it had the potential to be a crushing sentence on a man with complex mental health needs destroying any expectation of a useful life after release. It was also submitted that the following should have moderated the sentence: the Applicant’s age, lack of antecedents and lack of any indicator of his being prone to such violence as was involved in the present case.

52. The Crown’s submissions were in effect that the sentence was appropriate given the seriousness of the offending, the absence of anything in the Applicant’s subjective case capable of mitigating the offending itself, which was unexplained, his prospects of rehabilitation which were “perhaps guarded” and the finding that the Applicant’s mental health needs, while taken into consideration, meant that protection of the community was a priority to the extent that the principles in DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 were engaged.

Consideration

53. The principles to be applied in respect of a ground of appeal asserting manifest excess were not in dispute in this case and can be stated briefly.

54. The assessment of whether an aggregate sentence is manifestly excessive involves consideration of whether it reflects the totality of the criminality involved: Du Plessis v R [2024] NSWCCA 164 at [75] citing JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528 at [40].

55. To succeed in establishing that a sentence is manifestly excessive, an applicant must establish that the sentence was unreasonable or plainly unjust, in a context where there is no single correct sentence and sentencing is not a precise mathematical exercise: DL v R [2020] NSWCCA 164 at [107] and the authorities there cited. Indeed, intervention on this ground is only warranted where the sentence imposed is so far outside the range of sentences available that it can be concluded there must have been error: Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [76].

56. The maximum penalty applicable in respect of the offence for which the Applicant was sentenced provides a yardstick, when balanced with all other relevant factors, in light of which the appropriate sentence is to be determined: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 (Markarian) at [31]. Commonly the maximum penalty invites comparison between the case with which a court is dealing and cases falling within the category of the “worst case”: Markarian at [31].

57. The standard non-parole period relevantly “represents the non-parole period for an offence … that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness”: s 54A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

58. While careful attention is almost always required to be given to the maximum penalty, it must also be accepted that, as was held in Elias v R; Issa v The Queen (2013) 248 CLR 483; [2013] HCA 31 at [27]:

“… this is not to suggest that consideration of the maximum penalty will necessarily play a decisive role in the final determination. As also explained in Markarian, in some instances – as where the maximum sentence was fixed at a very high level in the 19th century – reference to it may be of little relevance. As this Court has explained on more than one occasion, the factors bearing on the determination of sentence will frequently pull in different directions. It is the duty of the judge to balance often incommensurable factors and to arrive at a sentence that is just in all of the circumstances. The administration of the criminal law involves individualised justice, the attainment of which is acknowledged to involve the exercise of a wide sentencing discretion. It is wrong to suggest that the court is constrained, by reason of the maximum penalty, to impose an inappropriately severe sentence on an offender for the offence for which he or she has been convicted. (Footnotes omitted)

59. In the present case, the Applicant was sentenced for an offence which carries a maximum penalty of imprisonment for 25 years with a standard non-parole period of 7 years and which was found to be “in the upper end of the mid-range of objective offending” and “a very serious example of such offending”. There were statutory aggravating factors but the sentencing judge was careful not to engage in double counting in that regard. The Applicant was found not to be entitled to leniency because of his albeit limited criminal history, nor was he entitled to any “discount” based on remorse. As to the Applicant’s background, although he had been exposed to alcohol abuse, domestic violence and sexual abuse in earlier years he had managed for a considerable period to lead a pro-social life. The material in relation to his mental health was noted to involve some inconsistency, especially in relation to illicit drug use and its consequences. No causal link could be drawn between his mental health disability and the offending and it was found appropriate to have greater regard to the protection of the community from future offending by the Applicant in all the circumstances. Taking into account those factors and all the other relevant findings of the sentencing judge, and the applicable purposes of, and principles in relation to, sentencing, the sentence imposed of 9 years’ imprisonment with a non-parole period of 6 years and 6 months did not bespeak error. Furthermore, in the circumstances, such a sentence was not unreasonable or plainly unjust.

60. While the sentence imposed was towards the sterner end of the range of available sentences, it was not so long as to constitute a crushing sentence when regard is had to the offence committed by the Applicant, the maximum penalty and all objective and subjective factors which should be appropriately brought into account on sentence: Jackson v R [2020] NSWCCA 230 at [6].

61. Given the lack of a sufficient basis for challenging the sentence, leave to appeal in that regard should be refused.

Orders

62. In light of the reasons and conclusions above, the Court orders:

1. Grant leave to appeal in respect of ground 1 of the draft Notice of Appeal.

2. Dismiss the Applicant’s appeal on ground 1.

3. Otherwise, refuse leave to appeal.

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Decision last updated: 02 December 2024