Taylor-Joycey v The Queen

[2021] NSWCCA 29

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Taylor-Joycey v R [2021] NSWCCA 29

Hearing dates:

24 February 2021

Decision date:

10 March 2021

Before:

Leeming JA at [1]; Harrison J at [2]; Adamson J at [3]

Decision:

(1) Refuse leave under rule 4 of the Criminal Appeal Rules to appeal on grounds 1-6.

(2)   Grant leave to appeal against the conviction on ground 7.

(3)   Dismiss the appeal against conviction.

(4)   Grant leave to appeal against sentence.

(5)   Dismiss the appeal against sentence.

Catchwords:

CRIME — Appeals — Appeal against conviction — Directions to jury — accused’s right to silence — post offence conduct — consciousness of guilt — witnesses not called in the Crown case — hearsay evidence — victim’s motive to lie — Unreasonable verdicts

CRIME — Appeals — Appeal against sentence

Legislation Cited:

CrimesAct 1900 (NSW), ss 97(1), 33(1)(a)

Criminal Appeal Act 1912 (NSW)

Criminal Appeal Rules (1952 SI 2) (NSW), r 4

Evidence Act 1995 (NSW), ss 38, 89, 136, 165, 191

Cases Cited:

Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67

DoevR [2008] NSWCCA 203; (2008) 187 A Crim R 328

Dyers v The Queen (2002) 210 CLR 285; [2002] HCA 45

Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8

Louizos v R [2009] NSWCCA 71; (2009) 194 A Crim R 223

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

Mahmood v Western Australia (2008) 232 CLR 397; [2008] HCA 1

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

Mulato v R [2006] NSWCCA 283

Petty v The Queen (1991) 173 CLR 95; [1991] HCA 34

R v Cao (2006) 65 NSWLR 552; [2006] NSWCCA 89

R v Isaacs (1997) 41 NSWLR 374

R v Reeves (1992) 29 NSWLR 109

SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13

The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35

The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54

Texts Cited:

Criminal Trial Courts Bench Book

Category:

Principal judgment

Parties:

Dylan Taylor-Joycey (Appellant)
Regina (Respondent)

Representation:

Counsel:
C Wasley (Appellant)
K Jeffreys (Respondent)

Solicitors:
Watsons Solicitors (Appellant)
Director of Public Prosecutions (NSW) (Respondent)

File Number(s):

2017/326439

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Crime

Date of Decision:

11 June 2019

Before:

O’Connor QC ADCJ

File Number(s):

2017/326439

Judgment

1. LEEMING JA: I have had the advantage of reading a draft of the reasons for judgment of Adamson J. I agree with her Honour, for the reasons she gives, that leave under r 4 of the Criminal Appeal Rules should be refused in relation to grounds 1-6. I have reviewed the trial, listened to the recordings of the triple-O calls made by Ms Dempsey and Mr Thorley, and viewed the mobile phone footage taken by Mr Wood. I agree with her Honour, for the reasons she gives, that the guilty verdicts were not unreasonable. In particular, it was amply open to the jury, applying the criminal standard of proof, to accept Mr McKee’s account of the armed robbery and to reject the applicant’s denial. It was also amply open to the jury to find that the Crown had established intention to cause grievous bodily harm and had negatived self-defence in relation to the wounding count. I agree with her Honour’s reasons for dismissing the appeal against sentence. I agree with the orders proposed by her Honour.

2. HARRISON J: I agree with Adamson J.

3. ADAMSON J: Dylan Taylor-Joycey (the appellant) was tried on indictment by O’Connor QC ADCJ and a jury. The jury returned verdicts of guilty in relation to both counts on the indictment which charged as follows:

“1.   That on 28 October 2017 at North Gosford in the State of New South Wales, being armed with an offensive weapon, namely a machete, robbed Phillip McKee of Australian currency, the property of Phillip McKee.

2.    That on 28 October 2017 at North Gosford in the State of New South Wales, wounded Wayne Dwyer with intent to cause grievous bodily harm.”

4. The count 1 offence was an offence under s 97(1) of the Crimes Act 1900 (NSW) which carries a maximum penalty of 20 years’ imprisonment. There is no standard non‑parole period. The count 2 offence was an offence under s 33(1)(a) of the Crimes Act which carries a maximum penalty of 25 years’ imprisonment. There is a standard non-parole period of 7 years.

5. On 11 June 2019, his Honour imposed a sentence for count 1 of a fixed term of imprisonment for 4 years commencing on 28 November 2017 and expiring on 27 November 2021. His Honour imposed a sentence for count 2 of 8 years commencing on 28 November 2018 and expiring on 27 November 2026, with a non-parole period of 5 years, expiring on 27 November 2023. The total effective sentence was 9 years with a non-parole period of 6 years.

6. The appellant seeks leave, if required, to appeal against his convictions and seeks leave to appeal against the sentence imposed.

The grounds of appeal against conviction

7. The appellant appeals and, where necessary, seeks leave to appeal against his convictions on counts 1 and 2, on the following grounds:

“1.   The trial miscarried as a result of the learned trial judge’s failure to direct the jury on the applicant’s right to silence.

2.   The trial miscarried as a result of the learned trial judge’s directions on the alleged post offence conduct and consciousness of guilt.

3.   The trial miscarried as a result of the learned trial judge’s directions to the jury on the elements of Count 2 and the statutory alternative to Count 2.

4.   The trial miscarried as a result of the learned trial judge’s failure to direct the jury about the witnesses not called in the Crown case.

5.   The trial miscarried due to:

a. the failure to limit the use of hearsay evidence pursuant to s 136 [of the] Evidence Act and

b. the failure to direct the jury pursuant to s. 165 [of the] Evidence Act regarding hearsay evidence.

6.   The trial miscarried as a result of the learned trial judge failing to direct the jury regarding Phillip McKee’s motive to lie.

7.   The verdicts of the jury in relation to Count 1 and 2 are unreasonable and cannot be supported having regard to the evidence.”

The trial

The Crown case

8. The Crown case on count 1 was that, on 28 October 2017, in the afternoon, Phillip McKee was at home with Curtis Griffin, who lived with him, when the appellant and his girlfriend, Logan Wynen, (who were known to them), visited. While they were there, the appellant produced a machete and demanded money and drugs from Mr McKee. Mr McKee produced his wallet from which the appellant removed about $150.

9. The Crown case on count 2 was that at some stage during or after the robbery, Curtis left the unit and went to a nearby unit block where his stepfather, Wayne Dwyer, lived and told him about the robbery. Mr Dwyer was with Nathan Chiswick, who drove Mr Dwyer and Curtis back towards Mr McKee’s unit. On the way, Mr Dwyer recognised the appellant on the street with Logan and saw the appellant put the machete in his backpack. Mr Dwyer armed himself with a toy baseball bat which he found in the car and Mr Chiswick picked up a mattock from the car. They followed the appellant and Logan into Thorley’s Takeaway, where the appellant was standing at the counter, having ordered and paid for food. Mr Dwyer approached the appellant, hit him on the head with the baseball bat and demanded that he return the money he had taken from Mr McKee. The appellant produced and unsheathed the machete and used it to threaten Mr Dwyer. He followed Mr Dwyer and Mr Chiswick outside into the street. Ultimately, the appellant lunged at Mr Dwyer with his machete and cut his arm, intending to cause grievous bodily harm.

The defence case

10. The appellant’s defence to count 1 at trial was that he had not gone to Mr McKee’s home and therefore had not robbed him. He contended that Mr McKee’s evidence that he had was nothing more than a fabrication to give Mr Dwyer an excuse for hitting the appellant on the head with a toy baseball bat. His defence to count 2 was that when he had wounded Mr Dwyer with the machete, he had been acting in self-defence after being hit in the head by Mr Dwyer and that he did not intend to injure him, much less cause him grievous bodily harm.

The evidence

11. Because of ground 7 (the unreasonable verdict ground), it is necessary to consider the evidence in some detail. It is convenient to do this at the outset since it provides the context for the other grounds.

The evidence adduced by the Crown

12. The Crown called the following persons as witnesses: Mr McKee; Mr Dwyer; Mr Chiswick; Jarron Thorley (who, with his father, ran Thorley’s Takeaway); Nichole Dempsey, a passer-by, whose partner, Ben Wood, filmed part of the events the subject of count 2; Senior Constable Warren Smith, a police officer from The Entrance Police Station; Senior Constable Jeremy Farebrother from the Police Transport Command at Gosford; and Detective Senior Constable Tristan Gosbee from the Gosford Police Station, the officer in charge of the investigation. As Mr Wood was neither available nor required for cross-examination, his statement was read in the Crown case. The Crown also tendered several photographs of the scene, Mr Dwyer’s injuries, the machete, the baseball bat and the mattock. The Crown also tendered the film taken by Mr Wood on his phone and the recordings of the Triple-0 calls made by Mr Thorley and Ms Dempsey.

The evidence adduced by the accused

13. The accused gave evidence in his defence.

Summary of the evidence

The appellant’s evidence as to his whereabouts before the incident

14. The appellant’s evidence was that, at the beginning of the day, he was with his girlfriend, Logan, at his mother’s place in Niagara Park. His mother, who did not like Logan, asked them to leave. They had a verbal argument, which left the appellant feeling “disappointed” in himself because his girlfriend and his mother did not get on. He estimated that he and Logan had been together for a month but accepted that it was more like two months as they had got together at the beginning of September 2017. He said that he did not know the people she knew because he did not like the people she “talks to”. The appellant denied knowing that Logan’s mother’s name was Donna.

15. The appellant’s evidence was that, on 28 October 2017, he packed up his belongings. He and Logan went to Thorley’s Takeaway to get dinner. He said that it was about an hour’s walk away and that he decided to walk there to save money because they had to get a taxi so that his girlfriend could report at The Entrance Police Station. He said that it was “easier and quicker” to walk for an hour from Niagara Park to Thorley’s Takeaway and then get a taxi from there to the police station rather than go to the police station first and have dinner afterwards. It was a priority that Logan arrive at the police station by 8pm because otherwise she would have been in breach of her bail conditions.

The incident which formed the basis for count 1

16. Mr McKee’s evidence was that on Saturday 28 October 2017 he was at home in his unit on Dunbar Way with Curtis, the stepson of Mr McKee’s close friend, Mr Dwyer. Mr Dwyer had previously lived there but had left two or three days previously for in-patient treatment for blood poisoning at Gosford Hospital. He had been discharged that morning with his left arm in a sling. He had gone to stay with a friend, Peter Edwards, who lived in a unit nearby on Gertrude Street. Another friend of Mr Dwyer’s, Mr Chiswick, lived in the same unit block.

17. Mr McKee and Curtis were sitting on the couch watching television. Mr McKee was also listening to the races on the radio. There was a knock at the door. When Mr McKee got up to answer it he recognised the appellant and Logan. Mr McKee had known Logan for 8-10 years, as he knew her mother, and had met the appellant some months before. Curtis also knew the appellant and Logan. Logan had been to his unit on Dunbar Way before and the appellant had also been there a couple of times.

18. According to Mr Dwyer, the appellant was “just walking around, like pacing up and down” both inside and outside the unit. The front door remained open “all the time” they were there. Mr McKee returned to the couch and resumed watching television and listening to the radio. Logan was talking to Curtis. Subsequently, the appellant and Logan started to fight. Mr McKee did not pay attention to what they were arguing about as he was listening to the races. The appellant said to Logan, “Look what you made me do” before pulling out a machete and holding it against Mr McKee’s throat. At that stage, Mr McKee was still sitting on the couch. The appellant said to Mr McKee, “Give us your money and drugs.” Mr McKee thought, “I’ll just do what he says” because “I was just shitting myself”. He got his wallet out and said, “Oh shit go”. Mr McKee’s recollection was that there was about $150 in his wallet because he had gone to the bank that morning and withdrawn some cash. When it appeared that the appellant was going to leave with his wallet, Mr McKee said, “Come on, I just paid 20 bucks to get my key card back.” The appellant took the notes from the wallet, threw the wallet down and left the unit.

19. According to Mr McKee, although Curtis was present when the appellant held the machete to his neck, he left the unit during the robbery. Mr McKee was unsure whether Curtis had left via the balcony or through the front door.

20. The appellant denied that he had gone to Mr McKee’s unit on 28 October 2017 and denied robbing him. He also denied ever having gone to his unit or knowing where it was.

The events that led to the alleged commission of count 2

21. According to Mr Dwyer, either Curtis came to his unit block and told him directly, or told Mr Chiswick or Peter, who passed it on to Mr Dwyer, that they were getting robbed (meaning that a robbery was happening at Mr McKee’s place). In cross-examination, he recalled that Curtis had run from Mr McKee’s unit to where Mr Dwyer was to tell him. In re-examination, Mr Dwyer agreed that he had told police when he was interviewed at Gosford Hospital on 29 October 2017:

“…one of my friends ran up to a place where I was having a couple of drinks and said that [the appellant] and Logan had run through the place.

…

My stepson run up there and told me, my Mrs boy, Curtis, Curty, stepson.”

22. Mr Dwyer understood that Curtis had nominated the appellant as being the person responsible. Mr Dwyer decided to return to the unit block on Dunbar Way to see what was happening and to see if Mr McKee needed help. He saw Mr Chiswick in his backyard and asked him to give him a lift.

23. From his position in Mr Chiswick’s car, Mr Dwyer saw the appellant and Logan near the phone box on Henry Parry Drive between Mr McKee’s unit and Thorley’s Takeaway. Mr Dwyer knew Logan because Logan’s mother was a friend of Mr Dwyer’s girlfriend and he had met the appellant “in passing”. Mr Dwyer said that they saw the appellant putting a machete away in his knapsack.

24. In cross-examination, Mr Dwyer said that he had been told that Mr McKee had been robbed with a machete and that when he had seen the appellant put the machete in his backpack on Henry Parry Drive (see below), he inferred that it was the appellant who had robbed him. Mr Dwyer explained in cross-examination:

“You know you don’t carry machetes round Dunbar Way you know, unless you plan on hurting someone with it.”

25. Jarron Thorley gave evidence that he recalled a man (whom he identified in Court as the appellant) and a young female with blonde hair coming into his takeaway shop on 28 October 2017 to order food.

26. According to Mr Dwyer, Mr Chiswick parked the car around the corner from Thorley’s Takeaway. He and Mr Chiswick followed the appellant and Logan into the shop. Mr Dwyer said that because he had seen that the appellant had a machete in his backpack, he picked up a “little aluminium T-ball bat, like a kid’s T-ball bat” from inside Mr Chiswick’s car. Mr Dwyer explained in cross-examination that he had taken the bat out of the car because he wanted to “confront” the appellant because he had “been in my place robbing my house” (AB 270-271). This was a reference to the circumstance that Mr Dwyer had been living with Mr McKee before he was admitted to hospital for blood poisoning. According to Mr Dwyer, Mr Chiswick was holding what looked like the head of a garden rake which Mr Dwyer thought he had got from the car (AB 260). Mr Dwyer surmised that Mr Chiswick took it to defend himself because they both knew that the appellant had a machete, having seen him put it away in his bag (AB 277).

27. Mr Dwyer’s evidence was that he came up behind the appellant in the shop and said “Oi”, because he did not want to hit him from behind. Mr Dwyer told the appellant that he thought he was “all right” and that “he used to have a bit of respect for him” (AB 260). Mr Dwyer could not recall what else he said but he might have said “we’ve never done anything wrong by you” (AB 260). According to Mr Dwyer, the appellant turned around, at which point Mr Dwyer hit him on the right side of his head with the bat (AB 257). Mr Dwyer said that he had not hit him “hard at all” (AB 257). Mr Dwyer’s evidence was this was the only time he had struck the appellant (AB 263). When asked in cross-examination why he had hit the appellant, Mr Dwyer said:

“Because he fucking deserved it. Fucking robbing an old man, mate. We’re old men.” (AB 272)

28. When Mr Dwyer was asked what he was thinking when he hit someone whom he knew to have a machete, he said:

“I don’t know. I’m sick of fucking pricks robbing us.” (AB 279)

29. Mr Dwyer denied that he was in a rage when he hit the appellant and described himself as “a peace-loving hippie” (AB 281). He denied that he asked the appellant for money (AB 291-292).

30. In cross-examination Mr Dwyer initially accepted that he wanted to punish the appellant for robbing Mr McKee and wanted the money back (AB 266). However, later in cross-examination, Mr Dwyer said:

“I didn't want to punish him.  If I wanted to punish him, I would have caved his fucking head in with the bat when I hit him the first time, wouldn't I? … I should have did that [sic], but I didn't, because I'm not stupid, mate.  Do you know what I mean?  I'm not going to cave someone's head in with a baseball bat and kill him or something.  Wake up to yourself.” (AB 275)

31. Mr Thorley’s evidence as to what occurred was as follows. While the appellant and his companion were waiting for their hot food, two men “rushed straight around the corner and come [sic] straight into the shop” (AB 316). The older of the two men, who had a shaved head, was carrying a short baseball bat, about 65cm in length, and the other man came behind him with what looked like a gardening pick. According to Mr Thorley the older man (Mr Dwyer) hit the appellant on the back of the head (AB 313, 317). Mr Thorley recalled that, after the appellant had been hit, one of the two men yelled out for the appellant to “give him back the fucking money” (AB 313). In cross-examination, he confirmed that he thought that the person who had made the demand for the money was the man with the gardening tool (Mr Chiswick) (AB 317).

32. Mr Thorley’s evidence about what happened was as follows:

“[The appellant] stepped back in further towards the shop, turned around and then he pulled a machete out from underneath his T‑shirt, took the sheath off it and they started to confront one another and then I yelled out for them to take it outside.  When they both left and went around to the left towards Glennie Street, my father slammed down the roller door at the shop and then I went around the back of the shop to my side gate, called the cops and went out to see what was happening.” (AB 314)

33. Mr Thorley recalled that the machete was longer than the baseball bat (AB 315). He said that the only weapon that was used inside the shop was the baseball bat, which was used by the older man to hit the appellant (AB 315).

33. The recording of Mr Thorley’s Triple-0 call was played to the jury and a transcript was marked for identification. Mr Thorley told police, “There’s a fight going on involving a machete and a metal baseball bat or some sort of hammer near my shop.”

34. According to Mr Dwyer, the appellant started to follow him out of the shop (AB 257) and Mr Dwyer, who was still facing the appellant, “started back peddling [scil, pedalling] out of the shop.” At some point, according to Mr Dwyer, the appellant, threw back $100 at him. Mr Dwyer explained that the appellant “threw it back at us because it was our money” (AB 273). Mr Dwyer continued to walk backwards (AB 279).

35. Either while they were still in the shop or when they reached the footpath, the appellant pulled his machete out of the knapsack. When Mr Dwyer saw the machete, he “wanted to stay away from it” (AB 258). Mr Dwyer said that he and the appellant “circled the car, tried to keep away from each other” (AB 259). He said he was holding the bat in a “block position … in case there was a blow” because he was “trying to stay out of the way of the machete” (AB 259). Mr Dwyer described the machete as being “slightly longer than the little T-ball bat that [he] had” (AB 278). Mr Dwyer was not particularly aware of where Mr Chiswick was at this time. He said:

“… I had my eyes on one person, you know. I wasn’t fucking looking around I was trying to stay away from the machete.” (AB 279)

37. Mr Dwyer described their positions as follows: “just like a standoff, you know, we circled each other and that and I wasn’t getting in too close to the machete because [I had] a T-ball bat” (AB 281). Mr Dwyer denied that he had lunged at the appellant with his bat outside the shop (AB 291).

38. Mr Dwyer did not recall how long the circling continued but ultimately the appellant “got” him, as a consequence of which he suffered injury. Mr Dwyer was able to see “[j]ust bone” (AB 262). He found himself lying on the grass and was conscious that someone had wrapped his arm to try to stop the bleeding (AB 262). He did not see the appellant leave. He remembered that there was an ambulance there (AB 262).

39. Mr Thorley also reported in his Triple-0 call, “… one of them just smacked one … they seem to be having a dispute about money they were out the front.” Subsequently, he reported that one of the men was “injured on the ground” and “his arm looks like it’s bleeding” (AB 122-123). Later, he told police that the man with the machete had gone, that his first name was Dylan and that the woman he was with was supposed to go to the police station by 8pm. The police arrived while Mr Thorley was still on the phone to Triple-0.

40. When Mr Dwyer was asked in examination in chief why he did not just walk away, he said: “I didn’t want to turn my back on a machete … [b]ecause he would have chopped me with it” (AB 263).

41. Mr Chiswick purported to have little or no recollection of what had occurred that afternoon and explained that he had been “heavily under the influence” of Xanax at the time. The Crown was granted leave (which was not opposed) to cross-examine him pursuant to s 38 of the Evidence Act 1995 (NSW). Mr Chiswick accepted that, in a statement he had given to police on 28 October 2017, he had said the following:

“A short time later I saw Mr Dwyer and the man come out of the shop together. Mr Dwyer was still holding his baseball bat and the man had his machete in his hand and I could see that it was black, between 60 to 80 centimetres long and it looked new with an Army sort of sheath. I was standing behind my car on Glennie Street towards the middle of the road. The man started walking towards me initially when he left the shop, raising his machete over his head pointing it towards me. I kept my mattock to defend myself and the man turned towards Mr Dwyer and focussed his attention solely on Mr Dwyer.

The man and Mr Dwyer were standing near the start of the picket fence exchanging words, calling each other dogs and the like. I saw the man swing his machete towards Mr Dwyer about three times and I wasn’t sure if Mr Dwyer had been hit until I heard Mr Dwyer say, ‘Fuck, he’s got me.’ I turned and saw Mr Dwyer had a deep cut to his right forearm just below his elbow.”

42. Mr Chiswick agreed that there was nothing in his statement about Mr Dwyer swinging his bat towards the man with the machete. He agreed that he had no memory of that happening. He also agreed that, having regard to what was in the first paragraph of the statement (as follows), he would have been trying his best to tell the police his memory of that day (AB 307):

“This statement made by me accurately sets out the evidence that I would be prepared if necessary to give in Court as a witness. This statement is true to the best of my knowledge and belief.”

43. Ms Dempsey’s evidence was that she and Mr Wood, were driving northwards along Henry Parry Drive in North Gosford at about 7pm on Saturday 28 October 2017. When they stopped at the traffic lights, she looked out of the window and noticed a “little general store” and two men, one of whom was carrying a baseball bat and the other one had a “hammer”. She described the men as being in an “agitated state” (AB 320). She noticed that the man with the baseball bat had his left arm in a sling and was holding the baseball bat in his right arm (AB 320). Ms Dempsey immediately called Triple-0 because she thought it was a robbery. While she was being connected to Triple-0, she observed a younger man, whom she estimated was in his twenties, come out onto the footpath, carrying a machete and “holding it up towards the other men” and “moving towards them” as they backed away from him (AB 321-322). While Ms Dempsey and Mr Wood were stopped at the traffic lights, Mr Wood took out his phone to film what was happening. When the lights changed, Mr Wood turned into Glennie Street to continue to film what was happening rather than continuing up Henry Parry Drive as they had intended to do (AB 322).

44. Ms Dempsey saw the two older men continue to walk backwards away from the younger man with the machete. She said:

“…the older man went to strike with the baseball bat, the younger man went to strike with the machete, [the] older man tried to strike again but then the younger man made contact with the older man on his arm.” (AB 323)

45. In cross-examination, Ms Dempsey said that the two people were making “similar movements, just back and forth lunging at each other” and that that first lunge was made by the man with the baseball bat (AB 327). In re-examination, Ms Dempsey described the younger man as having “shaken around” the machete “[i]n a menacing way” (AB 328).

The appellant’s evidence about the events in and around Thorley’s Takeaway

46. The appellant said that he and his girlfriend ordered food from Thorley’s Takeaway. While he was facing the person who was cooking the food, he remembered being “hit very hardly in the back of the head” (AB 351). He turned around and confronted the two men behind him who demanded money from him. The appellant said that his Centrelink benefits were paid into his mother’s bank account and she had given him the cash that day (AB 367). He said that he had been paid about $580 that day and that he had had the cash on him when he left his mother’s earlier (AB 368). He had $100 in his pocket and the balance in a Louis Vuitton bag (AB 432). The appellant said that he reached for $100 and threw the money at him and said, “Leave us alone” (AB 366).

47. The appellant also said he reached for his backpack which was under the table and took the machete out (AB 371). The two men continued to abuse him. When he extracted the machete from its case, the two men “slowly took a couple of steps back” but were still blocking the appellant’s exit from the shop. The appellant was also aware of a third man behind him whom he said was blocking his exit (AB 364). According to the appellant, Logan was crying and asking him what they were going to do (AB 351). The men continued to back out of the shop. Although the appellant accepted that the two men were stepping back, he did not agree that they were retreating (AB 375). The appellant recalled that the man with the baseball bat had his left arm in a sling (AB 378). The appellant said that the man with the baseball bat lunged at him four or five times (AB 392).

48. The appellant said that at no stage had Logan identified Mr Dwyer as being her mother’s friend (AB 359).

49. According to the appellant, the two men were still showing an “aggressive manner” and “still trying to lunge” towards him. He was also aware of a third man who was outside the shop whom he believed was also out to get him (AB 360). He accepted that Mr Chiswick had not attacked him at any time (AB 362) and that Mr Dwyer had only hit him once (AB 366). He said that he lunged back. He said:

“When I lunged back I was very worried, because there was another male on the right hand side of me and also, by this stage, a car had pulled up behind me and I thought that I was surrounded.  I was very, very scared and I was worried about my girlfriend at the time, too, because she was standing behind me and there's people coming from everywhere.  At this stage, he went to lunge at me one more time and I've swung the machete only once.  When I've swung this machete, it's hit him in the arm.  After that everyone seemed to have moved away and I turned around and I walked off.”

50. The appellant denied intending to cause harm to Mr Dwyer and said that he struck his arm with the machete because he was in fear for his safety, because Mr Dwyer had lunged at him (AB 352, 400).

The aftermath

51. According to Ms Dempsey, the older man “dropped everything and just fell to the ground” (AB 323). The younger man “backed off.” By that time, Mr Wood had stopped the car. Through the open window, Mr Wood said, “what’d you do that for”, to which the younger man responded, “I didn’t do anything.” His blonde companion repeated, “He didn’t do anything.” (AB 323). What Mr Wood said to the appellant is audible on the film taken with Mr Wood’s phone which recorded that he said “You didn’t have to slash him mate, you didn’t have to slash him,” to which the appellant is recorded as having responded, “He come and hit me with a hammer ... [inaudible] … he hit me with a hammer” (00.52-00.58 on the film). The reference to the hammer is plainly a reference to the toy baseball bat which Mr Dwyer was holding. Ms Dempsey saw the younger man and his companion run back down Henry Parry Drive and south towards the hospital. Mr Wood took a towel out of his car and put it on the man’s arm to stop the bleeding (AB 323).

52. Mr Thorley heard the appellant and his companion talk about getting a taxi but did not hear where they were going to. He gave the following evidence about what he saw when he came outside the takeaway shop:

“As I walked around the corner I saw the man that had the baseball bat lying on the ground in pain, how he had a big gash on his arm.  His friend, or I don't know what their connection is, but the other guy that was with him was helping him out and then a car pulled over and some guy got out with I think it was like a towel or some sort of material thing to help him cover up the wound.” (AB 314)

53. According to Mr McKee, Curtis returned to Mr McKee’s unit and reported that Mr Dwyer was at Thorley’s Takeaway with the appellant (AB 238). At that point Mr McKee went down to the corner shop (Thorley’s Takeaway) with Curtis, which was about a five-minute walk away from his unit (AB 249).

54. When Mr McKee and Curtis arrived, they saw that Mr Dwyer was lying on the ground and the ambulance had arrived to attend to him. They did not see the appellant there (AB 242). Mr McKee stayed in the vicinity for 5-10 minutes but did not speak to anyone before returning home (AB 241).

55. Senior Constable Farebrother responded to the call on the police radio following the calls to Triple-0 from Ms Dempsey and Mr Thorley. On his arrival at Glennie Street, he saw a man on the ground, who was assisted by another man, Mr Chiswick, who was holding a towel (AB 335). Senior Constable Farebrother took photographs of the scene which were admitted into evidence. The images included images of the toy baseball bat, the mattock and Mr Wood’s phone.

56. Mr Wood later emailed to police the film of the event which he had recorded on his phone. The recording of Ms Dempsey’s call and the film were admitted into evidence in the Crown case. Ms Dempsey is recorded as having said, after the older man was injured with the machete, “the guy that slashed him with the machete said this guy was hitting him over the head with a hammer” (AB 133).

57. Mr Dwyer was admitted to hospital for surgery and remained there for two nights (AB 262).

58. On the evening of Saturday 28 October 2017, Senior Constable Smith was rostered on evening duty at The Entrance Police Station from 6pm until 6.30am. At about 7.30pm he received a call from police radio telling him that the appellant might be on his way to the station with Logan, who was due to report there as a condition of her bail. Senior Constable Smith was also told that the appellant might have a backpack containing a machete with him (AB 330). Senior Constable Smith passed on this information to the other officers who were on duty. He also looked up a photograph of Logan on the police system so that he would be able to recognise her (AB 330).

59. A photograph of the screen of the taxi meter in which the appellant and Logan travelled from Henry Parry Drive to The Entrance Police Station showed that the taxi was called at 7.13pm that evening, the passengers were picked up at 7.18pm and dropped off at 7.49pm, after travelling a distance of 24.3km (AB 102).

60. The appellant said in evidence that when he and Logan arrived at The Entrance Police Station, Logan went in to report and he stayed outside “finishing [his] can of drink” (AB 419). He was asked in cross-examination whether he intended to go into the station and report what had happened. The appellant responded that the police had arrested him within no more than a minute of coming outside and that he decided to exercise his right to silence (AB 419). When it was put to him that he had not intended to tell the police about being hit on the head with a baseball bat, he said:

“Of course, but then when they come [sic] out they put me under arrest and I executed [sic] my right to silence.” (AB 420)

61. The appellant agreed that he had not told police that he had been the victim of a crime and explained, again, that he had been arrested and “executed” his right to silence. When he was cross-examined about the location of his backpack which was found behind a wall, the appellant said that he was not sure and that it “could have fallen off or I could have put it there” (AB 421).

62. At 7.50pm, Logan presented at the front counter of The Entrance Police Station to report, as required by her bail conditions. Senior Constable Smith saw the appellant outside the front door of the station. The appellant was drinking soft drink from a can. Senior Constable Smith and Constable Paul went outside and arrested the appellant and charged him with assault. They told him that he was not obliged to say or do anything but anything he did say or do might be taken down and given in evidence. At that time, Senior Constable Smith did not observe any backpack in the appellant’s possession. Subsequently, Senior Constable Smith heard from Senior Constable Gregory that she had searched the taxi and not located the backpack.

63. Later that evening, Senior Constable Smith saw the can of drink on the wall outside the station. He picked it up to dispose of it and realised that it was still full of liquid. He leaned over the wall to pour out the contents when he noticed a backpack on the other side of the wall. Something was sticking out of the backpack. The article had been wrapped in a football jumper. Senior Constable Smith took it inside and unwrapped the article, which was a machete. He contacted Wyong Police Station to inform the detectives there of what he had found. They subsequently came to collect it. DNA testing showed that the blood on the machete was Mr Dwyer’s blood (which was an agreed fact, see below).

Subsequent events and investigation

64. Police visited Mr Dwyer in hospital that evening but he was “very affected by pain medication”. Detective Gosbee interviewed Mr Dwyer in hospital from 4.12pm on Sunday 29 October 2017 and took an electronically recorded statement from him (AB 265). Mr Dwyer gave a further statement to police on 1 November 2017 (AB 265).

65. Detective Gosbee also arranged for other witnesses to be interviewed, including Mr Wood, who made a statement on 29 October 2017. Mr Wood’s statement was read to the jury as he was not required for cross-examination (AB 348-349).

66. The following day, 29 October 2017, Mr McKee went to the hospital to see how Mr Dwyer was. Mr Dwyer told him that when he had heard about the robbery from Curtis, he had gone to the “shop” and hit the appellant with a baseball bat. The appellant had pulled out a machete and “chopped him” (AB 243). Mr McKee rejected the proposition put to him in cross-examination that he had fabricated the robbery to “fill … in a gap” and provide a reason for Mr Dwyer to have attacked the appellant (AB 243).

67. The following facts were agreed pursuant to s 191 of the Evidence Act:

“1.   A machete is an offensive weapon.

2.   The machete found in the black backpack at the Entrance Police Station was forensically examined with the following results:

a.   DNA was recovered from the blood on the blade of the machete which had the same profile as Wayne Dwyer. It is greater than 100 billion times more likely to obtain this profile if it originates from Wayne Dwyer rather than if it originates from an unknown, unrelated individual in the Australian population.

b.   DNA was recovered from the handle of the machete which was a mixture that originated from three individuals. The major contributor to the mixture had the same DNA profile as the accused Dylan Taylor-Joycey. It is greater than 100 billion times more likely to obtain this major profile if it originates from the accused Dylan Taylor-Joycey, rather than if it originates from an unknown, unrelated individual in the Australian population. The DNA from the minor contributors is not suitable for comparison due to the low level and complexity.

3.   In the confrontation at Glennie Street on 28 October 2017 Wayne Dwyer suffered injuries as follows:

a.   A laceration/incised wound to his right forearm which penetrated two layers of skin, the subcutaneous tissue, the brachioradialis muscle and also partially penetrated the radius bone.

b.   An injury to his right index finger which was an 80% laceration of the extensor tendon.

4.   Wayne Dwyer required treatment for the injuries as follows:

a.   Surgery in order to clean and close the wound to the right forearm with suturing of the muscle and the skin.

b.   Surgery to repair the right index finger tendon, with suturing of the tendon and the skin.

c.   He was required to wear a plaster cast on his arm for two weeks due to the fracture of the radius bone.

d.   He was required to wear a splint on the right index finger.

5.   Each of the injuries to the right forearm and the right index finger would constitute a wound.”

The police investigation

68. Mr McKee first spoke to police about the incidents about six months later, on 18 April 2018 (AB 240). He did not get in contact with the police and spoke to them only when they contacted him and came and spoke to him (AB 243, 252).

The conduct of the trial in so far as it relates to the grounds

Consultation with counsel regarding the proposed directions and elements

69. On the morning of 24 September 2018, the fourth day of the trial, the trial judge provided counsel with draft directions and invited submissions on the appropriateness and content of each of them. His Honour invited counsel to identify any further directions that were sought. After sending the jury away for the afternoon, the trial judge invited assistance from counsel concerning the elements of the alternative count to count 2 (reckless wounding). Counsel agreed with his Honour’s proposed directions. His Honour invited them to consider the draft further overnight and indicated that he would give a more complete direction about intention (AB 445).

69. On 25 September 2018, the appellant’s trial counsel closed the appellant’s case. His Honour read out a proposed direction on intention and foreshadowed his approach with counsel, who indicated that they agreed with the trial judge’s proposal.

The Crown’s closing submissions

71. On the question of the use to be made of what occurred outside The Entrance Police Station, the Crown’s closing submission included the following:

“Do you remember, members of the jury, also he indicated to you that he had intentions as soon as he got to The Entrance Police Station to tell them what had happened, that he just wanted to finish his drink first. Now, firstly, as I say, you might find that it’s entirely inconsistent with having acted in self-defence, and intending to tell the police immediately what had happened, that you would just stay outside drinking your soft drink. When it was put to him that it wasn’t a cigarette and he wasn’t required to stay outside he told you that actually he remembered he might have been having the cigarette.

…

So these are matters for you to consider whether you accept that reason as why he was still outside. The Crown says that you wouldn’t and the real reason that he was outside was he had absolutely no intention of reporting this matter to The Entrance Police Station.”

(AB 463)

72. It was common ground that the effect of the Crown closing was that the Crown relied on the appellant’s conduct outside the police station as affecting his credibility but not as a consciousness of guilt.

The defence closing submissions

73. In the defence closing, the appellant’s trial counsel referred to the fact that the Crown had not called Curtis as a witness at all. He said (AB 474):

“Now, the first charge is an important one to consider as well, and the Crown spent some little time on it and suggested a number of things. Firstly, that the witness, and there’s one, his name’s McKee. There was another person there by the name of Curtis. We haven’t heard from Curtis. He was apparently a friend of the people in the flat. He was also apparently related to the person Dwyer, as I understand it. You haven’t heard from him at all.

So that the Crown can’t call on anything he might say for assistance at all, so you just have to look at the evidence of McKee and you do take into account - his Honour may tell you this - common sense, exercise common sense, but also the demeanour of the person in the witness box and it’s not simply, not simply that they’re unsophisticated, that’s not an excuse for anything. That man gave evidence and he says first of all, to be very clear, he doesn’t go to the police, they have to come to him, and he doesn’t give a statement until 18 April 2018.”

The summing up

74. The trial judge arranged for each juror to have a copy of the document which set out the elements of the relevant offences. His Honour addressed those elements orally by reference to the document. The document identified the elements of count 2 as follows:

“1.   The accused caused Wayne Dwyer to suffer a wound.

2.   When he did that he intended to cause him grievous bodily harm.”

75. His Honour said orally, in relation to count 2:

“The elements the Crown must prove beyond reasonable doubt are these:

1. That the accused caused Wayne Dwyer to suffer a wound and when he did that, he intended to cause grievous bodily harm. (AB 13)

So they are the two essential elements the Crown must prove. If it does not prove both of them, the verdict must be not guilty. If it only proves one but not the other, that is not enough, they have to prove both of those essential elements to establish the guilt of the accused.

The direction of law I give you about ‘wound’ is, it is an injury involving the breaking or cutting of the interior layer of the skin which is called the dermis. The breaking of the outer layer which is the epidermis is not sufficient. It is agreed in this case that the injuries sustained by Mr Dwyer to his right forearm and right index fingers constitutes a wound and that is agreed at paragraph 5 of the agreed statement of facts.

So there is no argument about whether it was a wound or not, that is agreed, it was indeed a wound. And it would appear fairly obvious to you when you look at the photograph and the nature of the injury that was suffered.

Now ‘grievous bodily harm’ means a really serious injury but does not require the injury to be permanent or that the consequences are long-lasting or life-threatening.

Again this case, although it is not part of the agreed facts, there is no real issue that the injury suffered by Mr Dwyer to his right arm and finger was a really serious injury, so that is not a matter which will trouble you or a matter which is going to be in dispute. But it is a matter, for you, because you are the judges of the facts, and that falls within your domain. You have to be satisfied that this element has been proved however, there is no real dispute about it.

Again, as you will see from, the elements in relation to that offence, that element 2 is that when he did that he intended to cause him grievous bodily harm.

Again I say that intention may be inferred or deduced from the circumstances when the wounding took place and from the conduct of the accused before, at the time of, or after he did that specific act, namely striking Wayne Dwyer with the machete.”

76. His Honour proceeded to direct the jury as to the elements of the statutory alternative to count 2 (reckless wounding):

“So if you are not satisfied the accused intended to cause grievous bodily harm you may then consider the statutory alternative offence. I will come to self-defence later.

The element that must be proved beyond reasonable doubt for this offence are that the accused wounded Wayne Dwyer. Again there is no real dispute that he wounded him.

And two, the accused intended to cause him actual bodily harm or realised the possibility of his actions would cause him actual bodily harm but he went ahead and did it anyway.

That is the ‘reckless’ part of the wounding. He went ahead and did it anyway.

You will notice there is a difference there, because what has to be proved, that it was actual bodily harm, not grievous bodily harm.

And actual bodily harm is as I have defined it there for you:

‘any hurt or injury calculated to interfere with the health or comfort of the victim, but such hurt or injury need not be permanent but must be more than merely transient or trifling.’

So it is different to grievous bodily harm.

Again, if you came to that particular count and found that the accused was not guilty of count 2, there would be no real issue that this man has suffered what is actual bodily harm.

The other difference is - so there are two parts that you look at there: that he intended to cause the actual bodily harm or, or he realised the possibility his actions would cause him actual bodily harm but he went ahead and did it anyway.”

77. His Honour also directed the jury as to the matters to be proved by the Crown in negativing self-defence.

78. When the trial judge summarised the Crown case, his Honour said, of present relevance (to ground 2):

“[The Crown] says [t]hat you look at his conduct after the particular incident as something that bears upon his credibility; if he was the victim, as he says of this assault of which there is no real issue, that he was assaulted, that he was the victim of being attacked after he went out of the shop by Dwyer with a baseball bat and by the other gentleman Chiswick with the mattock.

That that would be something that you would be immediately wanting to report to the police, that he did not call an ambulance, that he just left the scene, that he went with his girlfriend who was reporting to the police station in relation to some other matter.

That he did not go into the police, that he remained outside. That he had a drink outside, then ultimately said that he had a cigarette. The taxi was waiting, that he had a drink on the ledge, but at no stage did he go in and volunteer that he was the victim of this particular assault.

He was arrested for it at the time and they found his backpack over the wall with a machete in it, so the inference the Crown would ask you to draw is that he was trying to hide that backpack with the machete in it and the reason they would advance for that is that it is not behaviour consistent with someone who had been the victim of this assault, not someone who was acting in self-defence but consistent with a sense of guilt in relation to what had happened. If he had been up front and said this is what happened that would support him, but he did not do that. The backpack went over the wall and was ultimately recovered.”

[Highlighted passage relied on by the appellant in support of ground 2.]

79. When summing up the defence case, his Honour said, of present relevance (to ground 6):

“In relation to count 1 Mr Cavanagh submitted to you, that you would not be satisfied of the evidence of McKee because he did not go to the police until eight months after the event, that that is inconsistent with someone that observed what he alleges he observed, that he would have gone to the police straight away. The evidence of the Crown is that Dwyer informed the police of what had happened and where it had happened.

Mr Cavanagh submits to you that look really, you would not be satisfied because Curtis who was alleged to be there when McKee was robbed was not called, so we do not know what he said and that you would not be satisfied that the actual offence had taken place and that it is more likely that Mr Dwyer made this event up, fabricated it for the purpose of assisting his mate Dwyer.”

80. It was common ground that the trial judge did not give the following directions:

1. a direction that the appellant had no obligation to speak when he had been arrested and that the jury was not entitled to draw any inference from his silence upon arrest;

2. an Edwards direction (after Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63) about the conditions that needed to be satisfied before the jury could use particular conduct as amounting to a consciousness of guilt; or

3. a Mahmood direction (after Mahmood v Western Australia (2008) 232 CLR 397; [2008] HCA 1) that the jury was not to speculate about the evidence of witnesses who were not called but that the absence of particular witnesses could be taken into account by the jury in determining whether the Crown had proved its case beyond reasonable doubt.

81. It is also common ground that none of these directions was requested by counsel. It was accepted by the appellant that each of the grounds apart from ground 7 required leave under rule 4 of the Criminal Appeal Rules (1952 SI 2) (NSW). There was no allegation made that trial counsel was incompetent or that the forensic choices he made were not reasonably open to competent counsel in defence of his client.

82. Because this Court heard full argument on all of the grounds, I propose to set out my conclusions on the grounds before addressing the question of leave separately, whether under rule 4 of the Criminal Appeal Rules or under the Criminal Appeal Act 1912 (NSW) leave ought be granted.

Ground 1: alleged failure to direct the jury as to the accused’s right to silence

83. As referred to above, it is common ground that the trial judge did not give the jury a direction along the following lines (as set out in the Criminal Trial Courts Bench Book, at 4-110):

“[The accused], as you are aware, chose not to answer questions put to [him/her] by the police at the time of [his/her] arrest. All people in this country have a right to silence — that is, to choose not to answer questions put to them by the police. That is what the police officer told [the accused] when [he/she] was asked if [he/she] wanted to answer their questions. There are some exceptions to this right, for example, when a police officer asks the registered owner of a car who was driving it at the time of some traffic incident. But those exceptions do not apply here.

In this case, it would be quite wrong if [the accused], having listened to what the police said, and having decided to exercise [his/her] right to silence, later found that a jury was using that fact against [him/her]. You must not do that of course. It is important, therefore, that you bear in mind that [the accused’s] silence cannot be used against [him/her] in any way at all. The fact that [he/she] took note of the caution given by the police and chose to remain silent cannot be used against [him/her]. Under our law, an accused person has a right to silence. [see: s 89 Evidence Act 1995 and Petty v The Queen (1991) 173 CLR 95 at 97.]”

84. Ms Wasley, who appeared on behalf of the appellant in this Court, relied on the appellant’s evidence that he intended to report the incident to police but that he did not do so because he was approached by police outside the station and arrested and thereafter relied on his right to silence. She contended, on the basis of Petty v The Queen (1991) 173 CLR 95 at 99; [1991] HCA 34, that the jury ought to have been directed that they could not use the exercise of that right on arrest to reason that the appellant was guilty. She contended that this failure constituted a fundamental error which gave rise to a real risk that the jury misused the evidence as to the appellant’s silence.

85. In Petty v The Queen at 99, the High Court said, when referring to an accused who has exercised the right to silence on arrest:

“That incident of the right of silence means that, in a criminal trial, it·should not be suggested, either by evidence led by the Crown or by questions asked or comments made by the trial judge or the Crown Prosecutor, that an accused's exercise of the right of silence may provide a basis for inferring a consciousness of guilt. Thus, to take an example, the Crown should not lead evidence that, when charged, the accused made no reply. Nor should it be suggested that previous silence about a defence raised at the trial provides a basis for inferring that the defence is a new invention or is rendered suspect or unacceptable.”

86. This principle is consistent with s 89 of the Evidence Act, which relevantly provides that, in a criminal proceeding, an inference unfavourable to the accused must not be drawn from evidence that he failed or refused to answer questions asked of him or respond to representations made to him by investigating police officers. The word “inference” is defined in s 89(4) to include inference of consciousness of guilt and inference relevant to the party’s credibility.

87. In R v Reeves (1992) 29 NSWLR 109 at 115 this Court (Hunt CJ at CL, Mahoney JA and Badgery-Parker J agreeing) said:

“… where such evidence is given which discloses that the accused has exercised his right of silence, a direction should invariably be given — as soon as the evidence is given and, if necessary, again in the summing up — to make it clear to the jury that the accused had a fundamental right to remain silent and that his exercise of that right must not lead to any conclusion by them that he was guilty: R v Astill (Court of Criminal Appeal, 17 July 1992, unreported) at 9.”

[Emphasis added.]

88. As is evident from the summary of the trial set out above, the appellant was cross-examined about his evidence that he intended to report that he had been struck by the baseball bat when he arrived at the police station but that he had been arrested and had decided to exercise his right to silence. The Crown, when cross-examining the appellant, explored the interval between the appellant’s arrival at the police station and his arrest with a view to establishing that he had the time to report the crime (against him) before his arrest. In his answers (which were, to this extent, non-responsive), the appellant insisted that he had chosen to exercise his right to silence on arrest. There was no objection to this line of questioning and no request, either at the time of these answers or in the summing up, for a direction that no use could be made of the exercise by the appellant of his right to silence.

89. I am not persuaded that the use of the word “invariably” in the passage extracted from R v Reeves above has the effect that there has been any error of law in the present case. Although the jury was aware that the appellant had been arrested and had exercised his right to silence, there was no suggestion by the Crown that this could be used against him. The Crown was careful to concentrate on the period before the appellant’s arrest. Indeed it was the appellant himself who insisted that he had exercised his right to silence.

90. The obligation of the trial judge is to ensure that an accused person is tried fairly. Generally speaking, it is the obligation of the accused’s counsel to make objections and seek directions on behalf of the accused. The failure by trial counsel to seek a direction or make an objection does not absolve the trial judge of the obligation to ensure a fair trial. The approach of trial counsel is, however, a relevant matter since trial counsel is in a position to determine whether a particular course would advance the interests of his or her client at trial. To seek a direction, such as the one the subject of ground 1, might be inadvisable, even though, if sought it would be required to be given, because of an attendant forensic disadvantage to the accused which might flow from it. It would have been open to the trial judge to direct the jury, at the time this evidence was given, or in the summing up, that they could not use the appellant’s silence on arrest against him.

91. However, there are reasons why defence counsel might not have asked for such a direction, on the basis that the direction would have emphasised the fact that the appellant chose not to speak to the police (immediately after the relevant events but before his arrest) although he chose to give evidence (when he must have had more time to consider what he would say). Although the trial judge had an obligation to ensure that the accused was tried fairly, his Honour was entitled to rely on the judgment of the appellant’s trial counsel that such a direction was not sought because it was not thought to advance the interests of the appellant: see, for example, R v Cao (2006) 65 NSWLR 552; [2006] NSWCCA 89 at [14]-[18] (Howie J, Spigelman CJ and Barr J agreeing). These principles are relevant to the other grounds of appeal against conviction, apart from ground 7 (the unreasonable verdict ground).

92. For these reasons, I am not persuaded that ground 1 has been made out.

Ground 2: alleged failure to give directions about consciousness of guilt

93. Ms Wasley submitted that, by using the words “sense of guilt” in the summing up, the trial judge had mischaracterised the Crown’s submissions and that, by introducing the concept of “sense of guilt”, the trial judge had invited the jury to engage in consciousness-of-guilt reasoning, without directing them as to the conditions which must be met before such reasoning was permitted.

94. It is plain from the way the Crown conducted its case at trial, and from its closing submissions, that it relied on the appellant’s post-offence conduct as reflecting adversely on his credibility (which was a principal issue in the trial) but not as a consciousness of guilt. Ground 2 rests on his Honour’s use of the words “sense of guilt” in the summing up.

95. The words “sense of guilt” could, without more, be regarded as synonymous with the expression “consciousness of guilt”. However, the question for this Court is whether these words would have been understood by the jury, in the context of the trial, as giving rise to that concept, as opposed to referring to the Crown’s submissions on the appellant’s credibility. The appellant’s evidence concluded on the morning of 25 September 2018. Thereafter, the Crown had addressed, the appellant’s trial counsel had addressed and the trial judge summed up. The transcript recorded that the jury retired to consider its verdicts at 3.19pm on 25 September 2018. It follows from the brevity of addresses and the summing up, that the jury must have had the Crown’s address fresh in their minds during the summing up and after they retired.

93. Although the expression “sense of guilt” is to be avoided except where consciousness of guilt is relied on, I am not persuaded that its use would have caused the jury to consider that the Crown was relying on the accused’s conduct as bearing on anything other than his credibility. Trial counsel was in a position to ascertain the effect of the trial judge’s phrase and was entitled to adjudge that it did not require correction. Trial counsel for the appellant might well have considered that any corrective direction would merely have served to highlight the potential of the appellant’s conduct outside the police station (failing to report the assault with the baseball bat and disposing of the backpack) to be used against him as amounting to a consciousness of guilt, although the Crown had not put its case on that basis.

94. For these reasons, I am not persuaded that ground 2 has been made out.

Ground 3: alleged misstatement as to the elements of count 2 and the statutory alternative

98. Ms Wasley made no complaint about the written directions to the jury. However, she submitted that the trial judge’s directions in the summing up were erroneous in that they incorrectly suggested to the jury that there was no real issue about intention. She contended that the oral directions elided the distinction between causing a particular type of harm (grievous bodily harm or actual bodily harm) and intending to cause that type of harm. Ms Wasley argued that, in telling the jury that there was no real dispute about the type of harm, the trial judge was, in effect, telling the jury that there was no real dispute about intention.

99. I am not persuaded that there was any such conflation. The jurors had the document which had been distributed to them at the beginning of the summing up, in which the elements were set out in a way which is not the subject of challenge. His Honour was entitled to identify the matters which had been established (that there was a wound, that being an agreed fact), those which were not in dispute (although they still had to be satisfied of them, such as the nature of the injury) and those which were in dispute (intention and self-defence). A fair reading of the summing up together with the written directions indicates that the jury were directed about each of the elements and would have understood that the element of intention remained very much in dispute.

100. For these reasons, ground 3 has not been made out.

Ground 4: alleged failure to give a direction about witnesses not called in the Crown case

101. Ms Wasley submitted that the trial judge ought to, and had failed to, give a direction in accordance with the following draft direction in 4-375 of the Criminal Trial Courts Bench Book:

“You have heard that [name of witness] has not been called by the Crown to give evidence. You can take the fact that there was no evidence from that witness into account when you decide whether the Crown has proved the guilt of the accused.

I am not inviting you to guess what [name of witness] would have said if [he/she] had been called. You must not do that at all. But in a criminal trial, where the Crown must prove that the accused is guilty beyond reasonable doubt, a jury is entitled to take into account that there was no evidence from a particular person in deciding whether or not there is a reasonable doubt about the accused’s guilt … [refer to the submissions of the defence and Crown on the issue].”

102. Ms Wasley submitted that, as the Crown had not called two eye witnesses, Curtis and Logan, the direction was required. She submitted that the direction in relation to Curtis was particularly necessary, having regard to ground 5, which will be considered below.

103. In support of this submission Ms Wasley outlined the evidence of Curtis’ involvement to establish that he would have been a key witness. She relied on the following:

1. Curtis’ presence at Mr McKee’s unit when the appellant and Logan arrived and when the appellant threatened Mr McKee with the machete;

2. that Curtis was the person who, either directly or indirectly, alerted Mr Dwyer to the fact that Mr McKee had been robbed, which caused Mr Dwyer and Mr Chiswick to go after the appellant and Logan;

3. that Curtis was with Mr Dwyer and Mr Chiswick when they saw the appellant stow away the machete in the backpack before entering Thorley’s Takeaway;

4. that Curtis was outside Thorley’s Takeaway when Mr Dwyer hit the appellant with a baseball bat; and

5. that Curtis returned to the unit to tell Mr McKee what was happening and had returned with him and observed Mr Dwyer being treated by ambulance officers.

104. There was no evidence as to why Curtis or Logan were not called and no mention in the transcript that the defence had requested that he or Logan be called.

105. The approach to be taken in relation to persons named in the trial who were not called as prosecution witnesses was considered in Mahmood v Western Australia. The High Court held, at [27], that in a criminal trial:

“It was neither necessary nor appropriate for the trial judge to direct the jury that an inference adverse to the case for the prosecution could be drawn because the presence of blood in the appellant’s trouser pocket had not been the subject of evidence by the prosecution’s witnesses. In the joint reasons in RPS v The Queen it was pointed out that where a witness, who might have been expected to be called and to give evidence on a matter, is not called by the prosecution, the question is not whether the jury may properly reach conclusions about issues of fact but whether, in the circumstances, they should entertain a reasonable doubt about the guilt of the accused. Similar views were expressed by Gaudron and Hayne JJ and by Callinan J in Dyers v The Queen.”

[Footnotes omitted.]

106. While a so-called Mahmood direction (along the lines of the draft in the Criminal Trial Courts Bench Book extracted above) could have been given, it was not sought by either party. One can well understand why it was not sought by the appellant’s trial counsel. Absent such a direction, the jury might have reasoned that Curtis’ evidence would not have supported the Crown case. This reasoning would have been consistent with the reasoning in Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8, which applies in civil cases, and allows a tribunal of fact to draw an inference, in respect of a person who could have been expected to be called by a party, that that person’s evidence would not have assisted the party’s case. In Dyers v The Queen (2002) 210 CLR 285; [2002] HCA 45, Gaudron and Hayne JJ said, obiter at [6], that a Jones v Dunkel direction ought not be given in a criminal trial, either in respect of the prosecution case or the defence case. Although they were the only judges in Dyers to address such an inference against the Crown (the issue to be determined in the appeal related to whether the inference could be drawn against an accused), the dictum of Gaudron and Hayne JJ was subsequently approved by the High Court in Mahmood v Western Australia. In Louizos v R [2009] NSWCCA 71; (2009) A Crim R 223, at [56], this Court (Howie J, McClellan CJ at CL and Grove J agreeing) confirmed that the law had changed as a consequence of Mahmood v Western Australia and, thus, what their Honours said in Dyers v The Queen on this matter, as approved in Mahmood v Western Australia, now represents the law.

107. Thus, it can be seen that the effect of the absence of such a direction was likely to favour the appellant since the jury may well have reasoned that, if Curtis’ evidence had assisted the prosecution case, the Crown would have called him. The same can be said with respect to Logan, who was not called to give evidence.

108. In these circumstances, I am not persuaded that ground 4 has been made out. Although it would have been open to the trial judge to give a Mahmood direction, his Honour was not obliged to give one. His failure to give such a direction tended to operate to the appellant’s benefit.

Ground 5: alleged failure to limit the use of hearsay evidence pursuant to s 136 of the Evidence Act and alleged failure to direct the jury under s 165 of the Evidence Act

109. In support of ground 5, Ms Wasley submitted that what Curtis told his stepfather (Mr Dwyer) about what had occurred in Mr McKee’s unit was hearsay because Curtis was not called as a witness. Although she accepted that the evidence had a dual purpose, evidence of complaint and evidence of the fact, she submitted that the hearsay purpose was prejudicial to the appellant and that the use of the evidence ought to have been limited under s 136 of the Evidence Act.

110. Ms Wasley argued that, because Curtis had not been called as a witness, there had been no opportunity to cross-examine him about what he had seen and what he had told Mr Dwyer, or others, about the robbery. The role of Curtis as a go-between was important to the Crown case since it explained why Mr Dwyer hit the appellant with a baseball bat. It was important to the appellant’s case that count 1 had been fabricated by Mr McKee to justify Mr Dwyer’s otherwise unprovoked attack on the appellant in Thorley’s Takeaway.

111. The principal difficulty with the aspect of ground 5 that relates to the complaint that the evidence was not limited to its non-hearsay purpose is that no objection was taken to the evidence when it was led. Thus, the Crown was permitted to ask Mr Dwyer how, and in what circumstances, and from whom, he came to learn that Mr McKee had been robbed. At the time the evidence was led from Mr Dwyer, it was plain (including from the Crown opening) that Curtis would not be called to give evidence. The Crown placed no reliance on the evidence of Mr McKee to prove count 1 and did not rely on what Mr Dwyer heard from Curtis or others about what had occurred to prove count 1. This evidence was relied on to explain why Mr Dwyer and Mr Chiswick went out looking for the appellant immediately prior to the commission of count 2.

112. In the absence of objection by trial counsel, or request for a direction, I am not satisfied that there was any basis to limit the use of Curtis’ complaint evidence. This aspect of ground 5 has not been made out.

113. The second basis of ground 5 is that a warning ought to have been given pursuant to s 165 of the Evidence Act that Curtis’ complaint to his stepfather might be unreliable as it was hearsay as he was not called as a witness and therefore could not be cross-examined. For the reasons given above, I am not satisfied that any such direction was warranted, particularly as it had not been sought. Both parties and the judge made it plain that, before convicting the appellant of count 1, the jury would have to be satisfied that Mr McKee was telling the truth and the appellant was not. In these circumstances, the complaint evidence of Curtis was relatively peripheral to count 1. This would appear to have been the (understandable) view of trial counsel for the appellant and provides an explanation for his failure to object to such evidence when it was being led. Trial counsel made the forensic choice to make much in his address of the fact that Curtis was not called as a witness, rather than to limit the use of Mr Dwyer’s evidence of what he said. For these reasons I am not satisfied that the second aspect of ground 5 has been made out.

114. I am not satisfied that ground 5 has been made out.

Ground 6: alleged miscarriage as a result of the trial judge’s failure to direct the jury as to Mr McKee’s motive to lie

115. Whether Mr McKee was telling the truth was a substantial issue on count 1. The appellant’s counsel cross-examined him extensively to the effect that he lied about the robbery in order to provide Mr Dwyer with an excuse for hitting the appellant with a baseball bat. The Crown addressed the alleged motive in its submissions. The appellant’s trial counsel emphasised the significant delay between the robbery and Mr McKee’s reporting of it to police as a matter reflecting adversely on Mr McKee’s credit.

116. Ms Wasley submitted that, in these circumstances, the trial judge was obliged to give the jury a clear direction in the summing up, in the context of the onus of proof, that the appellant had no obligation to prove that Mr McKee had a motive to lie and that rejection of the asserted motive did not mean that Mr McKee was necessarily a truthful witness. She did not rely on ground 6 as a “stand-alone” ground but submitted that it formed part of a combination of factors which ought lead this Court to be satisfied that there has been a miscarriage of justice.

117. The question of how a trial judge ought direct the jury in relation to a direct assertion by the defence that a Crown witness has a motive to lie was considered by this Court in Doe v R [2008] NSWCCA 203; (2008) 187 A Crim R 328. The relevant principles were set out by Latham J (Spigelman CJ and Hidden J agreeing) as follows:

“[58]   Having regard to these authorities, the following propositions emerge. Where the defence case directly asserts a motive to lie, and the issue has accordingly featured in the addresses of counsel, a miscarriage of justice may arise if the summing up gives undue emphasis to the issue of motive (‘the central theme’), or goes beyond the asserted motive and poses the question at large, and the summing up does not contain full, firm and clear directions on the onus of proof, including a direction that the accused bears no onus to prove a motive to lie and that rejection of the motive does not justify a conclusion that the evidence of the witness is truthful.

[59]   Where there is no direct evidence of a motive to lie on the part of a central Crown witness, or evidence from which one can be reasonably inferred, a miscarriage of justice may be occasioned by:

(i)   cross-examination of an accused as to the reasons why the witness would make the allegations that are central to proof of the Crown case;

(ii)   a Crown submission to the jury that draws attention to the fact that the defence case did not, by cross-examination of the witness, advance a motive to lie;

(iii)   a Crown submission to the jury which directly invites them to ask the question ‘Why would he/she lie ?’ in order to promote the acceptance of the witness as a witness of truth;

(iv)   a summing up that endorses or approves or fails to qualify a Crown submission falling within (ii) or (iii), or contains directions to the same effect.

[60]     Ultimately, whether the conduct outlined in (i), (ii) or (iii) leaves the jury with the impression that the accused bears some onus of proving the existence of a motive for the fabrication of the allegations against him/her, falls to be determined on the strength of the directions in the summing up. Full, firm and clear directions on the onus of proof, including a direction that the accused bears no onus to prove a motive to lie, may be sufficient to correct such a misapprehension. Much depends upon the particular circumstances of the case.”

118. It was common ground that no direction was given (or sought) that the appellant bore no onus to prove that Mr McKee had a motive to lie and that rejection of the motive did not justify a conclusion that Mr McKee’s evidence was truthful. It was not suggested that any of the circumstances listed by Latham J in [59] in Doe v R was present in the trial. Further, there was no suggestion that the trial judge had not summarised the defence case fairly in the summing up or given adequate directions about the onus and standard of proof.

119. I am not persuaded that it was an error for the trial judge not to give the direction which is the subject of ground 6. Accordingly, ground 6 is not made out.

Ground 7: alleged unreasonable verdict

120. In determining this ground, this Court is obliged to make its own assessment of all of the evidence to determine whether it was open to the jury to be satisfied of the appellant’s guilt of the two counts beyond reasonable doubt: The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [65]; M v The Queen (1994) 181 CLR 487; [1994] HCA 63; MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53; and SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13. In M v The Queen at 493, the High Court said, in answering this question:

“... the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.”

[Footnotes omitted.]

121. I have endeavoured, in the above narrative, to summarise the significant evidence which was before the jury, all of which is relevant to ground 7.

122. Having read the transcript and exhibits, viewed (in the case of the film footage and the photographs) and listened to (in the case of the Triple-0 calls made by Ms Dempsey and Mr Thorley and the audible component of the film by Mr Wood), I am satisfied that it was open to the jury to be satisfied of the appellant’s guilt on both counts.

123. The first count depended on an acceptance of Mr McKee’s evidence and a rejection of the appellant’s evidence. What was put against Mr McKee was that he ought not be believed because he did not report the robbery until some months later when police approached him, and that he had a motive to lie to provide an excuse for Mr Dwyer to hit the appellant with a baseball bat. It is evident from the jury’s verdict on count 1 that it did not regard these matters as undermining Mr McKee’s credibility or reliability as to the elements of count 1. The jury had the advantage of seeing and hearing Mr McKee give evidence. The evidence of Mr McKee was also supported by the circumstance that his unit was in the vicinity of Thorley’s Takeaway, where the appellant was seen not long after the robbery. It was open to the jury to reject the appellant’s evidence that he and Logan had walked for an hour to Niagara Park for some food before catching a taxi to The Entrance Police Station and to consider that the appellant was in the area to rob Mr McKee.

124. As to count 2, the principal issues were whether the appellant intended to cause grievous bodily harm to Mr Dwyer when he lunged with his machete towards him and made contact with, and injured, his right arm; and whether the Crown could prove that the appellant was not acting in self-defence. The jury had the undoubted benefit of hearing and seeing Mr Dwyer, Mr Chiswick, Mr Thorley, Ms Dempsey and the appellant himself give evidence. They also had the benefit of Mr Wood’s statement of what he saw and hearing the contemporaneous accounts given by Ms Dempsey and Mr Thorley to the Triple-0 operator. They also saw the film taken by Mr Wood on his phone. It was a case which largely turned on credit, although the surrounding circumstances were not in dispute. I am satisfied that it was well open to the jury to be satisfied of the appellant’s guilt of count 2 beyond reasonable doubt.

Conclusion

125. For the reasons given above, I am not satisfied that any of the grounds 1-7 has been made out. It may seem artificial to refuse leave under rule 4 of the Criminal Appeal Rules when the grounds have been addressed in full as if leave had been granted, but I consider that leave ought be refused to argue grounds 1-6. Each of those grounds was inconsistent with an apparently reasonable forensic course taken at trial by the appellant’s counsel. I am not satisfied that any of these grounds comprised conduct which occasioned any miscarriage of justice to the appellant. Accordingly, I propose that leave under rule 4 be refused in respect of grounds 1-6.

Application for leave to appeal against sentence

126. As referred to above, on 11 June 2019, his Honour imposed a sentence for count 1 (robbery armed with an offensive weapon) of a fixed term of imprisonment for 4 years commencing on 28 November 2017 and expiring on 27 November 2021. His Honour imposed a sentence for count 2 of 8 years commencing on 28 November 2018 and expiring on 27 November 2026, with a non-parole period of 5 years, expiring on 27 November 2023. The total effective sentence was 9 years with a non-parole period of 6 years.

126. The appellant sought leave to appeal against his sentence for count 2 on the following grounds:

“Ground 8: The factual findings made by the learned trial judge in respect of count 2 were not open on the evidence beyond reasonable doubt.

Ground 9: The learned trial judge erred in his assessment of the objective seriousness of Count 2.”

The sentence hearing

128. The sentence hearing took place on 26 April 2019, although the Crown bundle had been tendered on 27 September 2018. The Crown bundle contained the appellant’s criminal and custodial histories, documents evidencing revocation of parole and a photograph of the injury to Mr Dwyer. The appellant gave evidence at the sentence hearing and also relied on a report of Peter Watt, psychologist dated 20 April 2019, an email dated 25 April 2019 from the appellant’s mother and a report and clinical notes from Dr Kate Lavender, general practitioner.

129. In its written submissions on sentence, the Crown summarised the facts which it contended had been established at the trial. Of present relevance (to ground 9), the Crown submitted that count 2 was an “extremely serious example of wounding” and that the video demonstrated the “ferocity and rage” of the appellant. It accepted that there was no degree of premeditation.

130. The appellant’s counsel submitted that the offence in count 2 was mid-range due to the provocation to which the appellant was subjected by Mr Dwyer. He accepted that the Crown’s version of the facts (which summarised the prosecution evidence) was correct, although added that the second count would never have happened but for the provocation by Mr Dwyer and that the appellant had overreacted.

The reasons for sentence

131. In the reasons for sentence, his Honour correctly identified the maximum penalties (for count 1, 20 years’ imprisonment and for count 2, 25 years’ imprisonment with a standard non-parole period of 7 years).

132. His Honour summarised the facts established by the evidence at trial. His Honour recounted the appellant’s criminal history which amounted to over 40 offences over the 6 years since the appellant was 16. His Honour noted that the appellant had spent most of his adult life in custody.

133. Because of the grounds in respect of which leave to appeal against sentence is sought it is not necessary to summarise the whole of the sentencing judgment.

134. However, as the findings of fact with respect to count 2 are the subject of ground 8, it is useful to extract them from the sentencing judgment. His Honour, relevantly, found in respect of count 2:

“Shortly after the above offence, Dwyer was told of the robbery and that, ‘Joycey’ had done it, being a reference to the offender. He asked Nathan Chiswick for a lift back to Dunbar Way. Whilst on their way, Dwyer saw the offender and Logan near Thorley’s Takeaway shop.

He saw the offender putting a machete into his bag. Dwyer and Chiswick went into the shop to confront the offender, taking with him a small aluminium tee ball bat as he was aware the offender was armed with a machete. Chiswick took a garden rake or mattock, or some other such implement. The machete was described as lager than the tee ball bat.

Dwyer walked into the shop, confronted the offender and hit him with the tee ball bat to the right side of his head, at the same time yelling, ‘give me back the fucking money’. That blow did not cause the offender to fall. Dwyer was holding the bat in his right hand and his left arm being in a sling. The offender then pulled out the machete and unsheathed it. He confronted Dwyer. The offender then approached Dwyer, who was then walking backwards out of the shop. At some point, the offender threw money at Dwyer.

The confrontation continued outside. They lunged at each other. Dwyer was walking backwards up Glennie Street. The offender’s focus was on Dwyer, who was trying to block any blow from the machete by using the bat, whilst moving backwards away from the offender. The offender was holding the machete towards Dwyer with his arm full extended and shaking the machete around in what is described as, ‘a menacing way’.

The offender lunged at Dwyer with the machete and struck Dwyer on his right arm, causing him to fall to the ground and drop the bat. The offender and Logan [Wynen] ran from the scene.

Nicole Dempsey and Ben Wood were in a nearby motor vehicle. The final part of the incident was recorded on what I understand was, their mobile phone, such recording being tendered in evidence.

I am satisfied beyond reasonable doubt, that after the victim and Chiswick exited the shop, the offender was the aggressor and the victim and Chiswick were retreating, being described by the victim as, ‘back peddling’ [pedalling]. Whilst outside, there was no occasion when either the victim or Chiswick struck the offender. The machete was a far more intimidating and frightening weapon than those items possessed by either the victim or Chiswick.

Dwyer sustained an injury to his right arm, involving the penetration of two layers of skin, subcutaneous tissue, the brachioradialis muscle, and also partially penetrated the radius bone. He also suffered a wound to his right index finger, involving an 80% laceration of the extensor tendon. He required surgery to his right forearm, involving suturing the muscle and skin. He also required surgery to repair the right index finger tendon with suturing of the tendon and skin. He was required to wear a plaster cast on his arm for two weeks, due to the fracture of the radius bone. He was also required to wear a splint on the right index finger.”

[Emphasis added to indicate the finding which is the subject of ground 8.]

135. His Honour’s assessment of the objective seriousness of count 2 appears from the following extract from the reasons:

“As far as the s 33 offence is concerned that offence is objectively very serious. The maximum penalty also is illustrative of the seriousness with which the community regards such offences. As has been acknowledged in previous cases, an offence in breach of s 33 encapsulates a breadth of conduct and consequences which need to be analysed in determining the objective seriousness.

In assessing the objective seriousness I have taken the following matters into consideration: The confrontation between the victim, Dwyer, and the offender took place over a relatively short period of time. There was one strike despite at least one other attempt which made contact with the victim’s right arm. In relation to this aspect the Crown referred to the decision of the Court of Criminal Appeal in R v Zamagias (2002) NSWCCA 17 in which Howie J stated:

‘The jury’s finding that the respondent acted with the intention of inflicting grievous bodily harm reduces, although it does not eliminate, the effect of some of the matters that might reduce the objective gravity of the offence had the respondent been sentenced for an offence of malicious wounding simpliciter. For example, it does not seem to me to be a matter of very great mitigation that the wound was inflicted by a single blow when that blow was delivered with the particular intention found by the jury.’

Whilst not ignoring the fact that only one blow struck the victim in the circumstances of this case it does not result in significant mitigation of any sentence to be imposed. One blow with a machete is sufficient to cause significant injury, as is this case. I do take into account that the offender did not persist after the victim fell to the ground distinguishing the matter from those cases in which attacks persist upon victims who are disabled and defenceless whilst on the ground.

Although the victim delivered the first strike with the short aluminium baseball bat he was considerably older and weaker than the offender, particularly having regard to the fact that his left arm was in a sling. Chiswick was also considerably older than the offender but I have not ignored the fact that he was present to support the victim. Chiswick, however, did not appear to play any significant role in the confrontation between the victim and the offender. The offender was focused upon the victim and pursued him as the victim was walking backwards, as did Chiswick.

Mention has already been made of the serious nature of the injuries and subsequent treatment occasioned by those injuries. I have taken the victim’s injuries into account when assessing the objective seriousness of the offence. I accept there was no planning or premeditation by the offender, that the offender was acting in response to being struck himself. As was submitted by the Crown, the absence of premeditation is less significant in circumstances where the degree of harm intended was grievous bodily harm.

Mr Cavanagh of counsel submitted on behalf of the offender that the objective criminality is reduced by the provocation of the victim striking the offender. Such I accept may have been a motive for what might otherwise have been an incident of unexplained random violence. Such of course does not excuse the offender’s conduct. The offender was pursuing the victim who was much older and partially disabled with his arm in a sling. Further, such conduct has again to be assessed in light of the jury’s verdict that the blow was struck with intent to cause grievous bodily harm.

I accept there was a degree of impulsivity in the offender’s behaviour as a consequence of being struck by McKee. The community, however, cannot condone the use of weapons such as a machete which is capable of inflicting horrific injuries. There is a need to deter not only the offender but others from using such a weapon. Nevertheless, I have taken such provocation as existed into account. However, I do not attach significant weight to same when assessing the objective criminality.”

Ground 8: alleged incorrect factual findings

136. Ms Wasley accepted that his Honour had correctly set out the principles concerning fact-finding, following a jury’s verdict, for the purposes of sentencing. However, she contended that the finding of fact highlighted in the passage above was not open to be found beyond reasonable doubt. She relied on the circumstance that Mr Dwyer had hit the appellant on the back of the head with a baseball bat and that the appellant had taken the machete out of his backpack in response to Mr Dwyer’s aggression. She referred to evidence of the appellant and other witnesses that Mr Dwyer had lunged at the appellant outside the shop.

137. The trial judge’s obligation was to make findings, consistent with the jury’s verdicts, on the basis of the evidence at the trial and on sentence. The classic statement of the relevant principles, approved by the High Court in The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 and Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67, appears in R v Isaacs (1997) 41 NSWLR 374 at 377-378 as follows:

“The following principles concerning the law and practice of sentencing in this State are well-established:

1.    Where, following a trial by jury, a person has been convicted of a criminal offence, the power and responsibility of determining the punishment to be inflicted upon the offender rest with the judge, and not with the jury ....

2.    Subject to certain constraints, it is the duty of the judge to determine the facts relevant to sentencing. Some of these facts will have emerged in evidence at the trial; others may only emerge in the course of the sentencing proceedings. The fixing of an appropriate sentence ordinarily involves an exercise of judicial discretion, and it is for the judge to find the facts which are material to that exercise of discretion: Savvas v The Queen (1995) 183 CLR 1.

3.    The primary constraint upon the power and duty of decision- making referred to above is that the view of the facts adopted by the judge for purposes of sentencing must be consistent with the verdict of the jury. …

4.    A second constraint is that findings of fact made against an offender by a sentencing judge must be arrived at beyond reasonable doubt.

5.    There is no general requirement that a sentencing judge must sentence an offender upon the basis of the view of the facts, consistent with the verdict, which is most favourable to the offender …. However, the practical effect of 4 above, in a given case, may be that, because the judge is required to resolve any reasonable doubt in favour of the accused, then the judge will be obliged, for that reason, to sentence upon a view of the facts which is most favourable to the offender. …”

138. Thus, his Honour could take into account his impressions of the witnesses and made findings on the basis of those impressions, gained at the trial, for the purposes of sentencing. His Honour was not bound to limit his findings to incontrovertible or agreed evidence but was entitled, as long as he was satisfied of matters beyond reasonable doubt, to accept the evidence, for example, of Mr Dwyer and reject the evidence of the appellant.

139. The finding made by his Honour (in the highlighted passage extracted above) was supported by the evidence of Ms Dempsey (who described Mr Dwyer and Mr Chiswick as “backing away”) and the film taken by Mr Wood, which showed the respective positions of the appellant, Mr Dwyer and Mr Chiswick. It was also consistent with Mr Wood’s question of the appellant, which is audible on the film, “You didn’t have to slash him mate, you didn’t have to slash him” (00.49-00.53 on the film) which suggests that, as far as Mr Wood could tell from what he observed, there was no justification or excuse for the attack. It is also of significance that the appellant is recorded on the film as having responded to Mr Wood by saying, “He come and hit me with a hammer … he hit me with a hammer” (00.52-00.58 on the film). The appellant’s response, which referred to what Mr Dwyer had done to him inside Thorley’s Takeaway (thereby indicating that he was motivated by revenge for the attack inside), also supports the trial judge’s finding that the appellant had become the aggressor.

140. Further, where there was a conflict between the evidence of particular witnesses, his Honour was obliged and entitled to weigh up the evidence and make findings accordingly, having regard to the advantage he enjoyed of seeing and hearing the witnesses.

141. It is important to have regard to the precise terms of the trial judge’s finding, which was that outside the shop Mr Dwyer and Mr Chiswick were, relevantly the victims and the appellant was the aggressor. The evidence established that they were both going backwards and circling, and that the appellant was advancing towards them. Although there was evidence that Mr Dwyer lunged at the appellant, it was open to the trial judge to find (as his Honour did) that this did not convert Mr Dwyer into the aggressor. Given the significant disparity between the weapons used (the appellant had a machete which was longer and significantly more dangerous than the toy baseball bat or the mattock), the age and physical fitness of the men (Mr Dwyer was in his fifties and the appellant was 22) and their relative positions (Mr Dwyer and Mr Chiswick were backing out of the shop and into the street and the appellant was advancing towards them), I consider that it was plainly open to the trial judge to make the finding his Honour made.

142. For these reasons, I am not satisfied that ground 8 has been made out.

Ground 9: alleged error in assessment of objective seriousness of count 2

143. Ms Wasley contended that the absence of planning or premeditation by the appellant and the prior provocation by Mr Dwyer ought to have had the effect of significantly reducing the objective seriousness of count 2. She also relied on the fact that the attack was not sustained, there was only one strike and the appellant voluntarily ceased the attack.

144. The assessment of objective seriousness is “quintessentially for the sentencing judge”: Mulato v R [2006] NSWCCA 283. The question for this Court is to determine whether it was open to the sentencing judge to characterise the objective seriousness of count 2 in the manner which his Honour did.

145. As set out above in the extract from his Honour’s reasons, his Honour, in finding that count 2 was “objectively very serious” took into account the matters which Ms Wasley contended ought to have resulted in a finding of lesser objective seriousness, including the absence of planning or premeditation and the antecedent provocation.

146. I discern no error in his Honour’s assessment. The harm that can be done by a machete is illustrated by what occurred in the present case. Mr Dwyer was no physical match for the appellant as he was considerably older and already had his left arm in a sling. Further, although Mr Dwyer was armed with a toy baseball bat, this was plainly no match for the machete. The circumstance that his Honour took into account the antecedent provocation was to the benefit of the appellant since, although there was some provocation, the provocative act did not disable the appellant and, indeed, would appear to be what engendered the motive for a retributive act of violence against Mr Dwyer.

147. The non-parole period of 5 years which was imposed was below the standard non-parole period of 7 years. Sentencing involves a discretionary exercise in which objective and subjective matters are taken into account. It cannot be concluded that the trial judge’s assessment of the offence in count 2 as being “objectively very serious” was tantamount to a finding that the offence was in the high range. Indeed, it is not inconsistent with the appellant’s submission to the trial judge that the objective seriousness of count 2 was mid-range. I discern no error in his Honour’s assessment of the objective seriousness of count 2.

148. For these reasons, I am not satisfied that ground 9 has been made out.

Proposed orders

149. I propose the following orders:

1. Refuse leave under rule 4 of the Criminal Appeal Rules to appeal on grounds 1-6.

2. Grant leave to appeal against the conviction on ground 7.

3. Dismiss the appeal against conviction.

4. Grant leave to appeal against sentence.

5. Dismiss the appeal against sentence.

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Amendments

10 March 2021 -

"the" inserted before "wounding count" - [1]

Decision last updated: 10 March 2021