SK v R; BK v R; MS v R; Sakieh v R [2021] NSWCCA 130

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: SK v R; BK v R; MS v R; Sakieh v R [2021] NSWCCA 130 Hearing dates: 12 and 13 May 2021 Date of orders: 13 May 2021 and 25 June 2021 Decision date: 25 June 2021 Before: Bell P at [1] Rothman J at [20] Beech-Jones J at [53] Decision: (1) In relation to the appeal by Mobin Sakieh against his conviction: (i) Grant leave to appeal to raise ground 1 of his notice of appeal; (ii) Dismiss the appeal. (2) In relation to the appeal by SK, further order: (i) Pursuant to s 59(1) of the Crimes (Sentencing Procedure) Act 1999 that the commencement of the date of the sentence for H75460288 (court file no 2019/00392503) be varied from 8 February 2021 to 27 August 2019; (ii) Pursuant to s 59(1) of the Crimes (Sentencing Procedure) Act 1999 that the commencement date of the sentence for H80422786 (court file no 2021/00017523) be varied from 8 February 2021 to 8 October 2020. Catchwords: CRIMINAL LAW – unreasonable verdict – four appellants convicted of two counts of wounding with intent to cause grievous bodily harm – alleged part of group that invaded victims' unit – Crown case that all members of group entered unit or balcony – Crown case depended on proof that same group of males who walked up street returned and entered balcony area – whether inference supported by CCTV footage of street – whether victims' evidence sufficiently strong to make out Crown case – whether Crown excluded reasonable hypothesis that at least one group member did not return down street or did not enter balcony area – appeal allowed for three appellants – intercepted telephone calls involving fourth appellant – majority satisfied intercept demonstrated his presence on the balcony Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Crimes Act 1900 (NSW) Criminal Appeal Act 1912 (NSW) Cases Cited: Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345; [2012] HCA 17 Azzopardi v the Queen (2001) 205 CLR 50; [2001] HCA 25 Barca v The Queen (1975) 133 CLR 82; [1975] HCA 42 Libke v the Queen (2007) 230 CLR 559; [2007] HCA 30 Pell v The Queen (2020) 268 CLR 123; [2020] HCA 1 R v Hillier (2007) 228 CLR 618; [2007] HCA 13 R v Wanhalla [2007] 2 NZLR 573; [2006] NZCA 229 RD (a pseudonym) v R [2021] NSWCCA 94 RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3 Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56 Strbak v The Queen (2020) 267 CLR 494; [2020] HCA 10 The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 Weissensteiner v The Queen (1993) 178 CLR 217; [1993] HCA 65 Texts Cited: Australian Law Reform Commission, Evidence (Report No 26, 1985) Australian Law Reform Commission. Evidence (Report No 38, 1987) W Blackstone, Commentaries on the Laws of England (4th ed, 1770, Clarendon Press) W Twining, Theories of Evidence: Bentham and Wigmore (1985, Weidenfeld & Nicolson) Category: Principal judgment Parties: SK, BK, MS and Mobin Sakieh (Applicants) Regina (Crown) Representation: Counsel: Ms A Cook (Applicant SK) Mr J Trevallion (Applicant BK) Mr M Pickin (Applicant MS) Ms A Francis (Applicant M Sakieh) E Bolodis (Crown)