Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Connor v R; KC v R [2021] NSWCCA 171 Hearing dates: On the papers Date of orders: 21 July 2021 Decision date: 21 July 2021 Before: Bell P Rothman J Beech-Jones J Decision: In respect of Mitchell Connor, the Court orders that: (1) The time in which Mitchell Connor can give notice of his intention to apply for leave to appeal against his conviction be extended up to and including 2 July 2021; (2) Leave to appeal be granted; (3) Appeal allowed; (4) Set aside the convictions on Counts 1 and 3 and, in lieu thereof, direct that acquittals on Counts 1 – 4 be entered. In respect of KC, the Court orders that: (1) The time in which KC can give notice of his intention to apply for leave to appeal against his conviction be extended up to and including 29 June 2021; (2) Leave to appeal be granted; (3) Appeal allowed; (4) Set aside the convictions on Counts 1 and 3 and, in lieu thereof, direct that acquittals on Counts 1 – 4 be entered. Catchwords: CRIMINAL LAW – unreasonable verdict – two 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 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 – judgment in respect of co-offenders determined same issue – appellants entitled to the benefit of that analysis – appellants previously refused legal aid and appeals lapsed – extension of time granted - appeal allowed. Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW) Crimes Act 1900 (NSW) Criminal Appeal Act 1912 (NSW) Cases Cited: SK v R; BK v R; MS v R; Sakieh v R [2021] NSWCCA 130 Category: Principal judgment Parties: Mitchell Connor (Applicant) KC (Applicant) Regina (Crown) Representation: Counsel: Ms A Francis (for M Connor) Ms A Cook (for KC) Mr E Balodis (Crown) Solicitors: Hammond Nguyen Turnbull (for M Connor) Legal Aid NSW (for KC) Solicitor for Public Prosecutions (Crown) File Number(s): 2017/338417; 2017/325915 Publication restriction: The publication of KC's name or that of SK, BK and MS or any other information that might identify them is prohibited (Children (Criminal Proceedings) Act 1987, s 15A). Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 18 December 2019 Before: Buscombe DCJ File Number(s): 2017/338417; 2017/325915 Judgment 1. THE COURT: This judgment concerns two applications for leave to appeal against conviction that were filed out of time. The applications were filed as a consequence of this Court allowing the appeals against conviction by three co‑offenders and entering acquittals (SK v R; BK v R; MS v R; Sakieh v R [2021] NSWCCA 130; "the principal judgment"). It is contended that the position of each applicant for leave is not relevantly different to those co-offenders and they should be granted an extension of time, their appeals allowed and acquittals entered. The Crown concedes that is so. For the reasons that follow we consider the Crown's concession to be correct and the orders sought should be made. Background 1. On 20 August 2019, the two applicants, Mitchell Connor and KC along with SK, BK, MS, Mobin Sakieh and EV, were arraigned before a jury panel in the District Court on an indictment that contained six counts. Counts 1 and 3 charged Mitchell Connor and KC along with SK, BK, MS and Mobin Sakieh with two counts of wounding with intent to cause grievous bodily harm contrary to s 33(1)(a) of the Crimes Act 1900 (NSW). Counts 2 and 4 were alternative counts of wounding in company while being reckless as to causing actual bodily harm contrary to s 35(3) of the Crimes Act. Counts 5 and 6 only concerned EV. She was charged with committing two offences contrary to s 35(3). 2. On the date these offences were alleged to have been committed, namely 30 December 2016, each of SK, BK, MS, KC and EV were under the age of 18 years. It follows that their names cannot be published or broadcast (Children (Criminal Proceedings) Act 1987 (NSW), s 15A(1)(a)). 3. On 30 September 2019, the jury returned with verdicts of guilty on counts 1 and 3 against Mitchell Connor, KC, SK, BK, MS and Mobin Sakieh as well as verdicts of guilty on the two counts against EV. As a result of the verdicts on counts 1 and 3, no verdicts were taken on counts 2 and 4. On 18 December 2019 each of the applicants was sentenced. Mitchell Connor was sentenced to imprisonment for 9 years with a non-parole period of 6 years. KC was sentenced to 8 years imprisonment with a non-parole period of 5 years and 6 months. Their co-offenders were also sentenced to substantial terms of imprisonment. 4. On 12 and 13 May 2021, this Court, as presently constituted, heard argument on the appeals by each of SK, BK, MS and Mobin Sakieh against their convictions. Each of them contended that the jury's verdicts were unreasonable and could not be supported having regard to the evidence (Criminal Appeal Act 1912 (NSW), s 6(1)). At the conclusion of argument on 13 May 2021, the Court made orders upholding the appeals of SK, BK and MS and entered acquittals on counts 1 to 4 on the indictment (principal judgment at [58]). The Court reserved its decision in respect of the appeal by Mobin Sakieh. On 25 June 2021, the Court dismissed Mr Sakieh's appeal and published its reasons in respect of all four matters. 5. On 29 June 2021, KC filed a notice of appeal. On 2 July 2021, Mitchell Connor filed a notice of appeal. Each of them raised one ground of appeal namely that, like the verdicts entered against SK, BK and MS, the verdicts were unreasonable or cannot be supported, having regard to the evidence. Having regard to the submissions filed on their behalf and on behalf of the Crown, the Court suggested and the parties agreed that the appeal be dealt with on the papers. Extension of Time 1. Mitchell Connor filed a notice of intention to appeal on 21 December 2019 which expired by the time he filed his notice of appeal. Similarly, KC filed a notice of intention to appeal on 3 April 2020 but it also expired by the time his notice of appeal was filed. Accordingly, to pursue their appeal each of them required an extension of time to give notice of their intention to apply for leave to appeal (Criminal Appeal Act, s 10(1(a), (b), s 10(2)(a)). 2. KC's solicitor swore an affidavit stating that, after he filed a notice of intention to appeal, an application for legal aid was filed. Advice in relation to the appeal was sought and that "resulted in a refusal to extend a grant of aid". Further advice was sought but ultimately legal aid was refused and his appeal did not proceed. A further application for legal aid was lodged following the making of orders on 13 May 2021 and was granted. 3. An affidavit from Mitchell Connor's solicitor was to similar effect. He said that in May 2020 and April 2021 he also sought advice in support of a grant of legal aid. However, as a consequence of the advice received legal aid was refused. On 14 May 2021 he was approached by the Legal Aid Commission. He again sought legal aid which was granted and he retained Counsel. 4. Both affidavits reveal that the notices of intention to appeal expired through no individual fault of the relevant applicant. Instead, based on advice received, legal aid was refused. Given that and the strength of their appeals, there should be an extension of the time in which each applicant may apply for leave to appeal against their convictions. The Appeals 1. The balance of these reasons assumes a familiarity with the principal judgment. As noted, each of Mitchell Connor and KC seeks to rely on the reasons and findings in the principal judgment. 2. The submissions made on behalf of KC accepted that, at the trial, it was not in dispute that he was one of the group of males who assembled at the car park behind the Pennant Hills library at around 8.00pm on 30 December 2016, disguised themselves and then walked across Ramsay Street and entered Pennicook Lane (principal judgment at [63] to [64]). However, it was contended, by reference to the findings of all three members of the Court, that it was not open to the jury "to be satisfied that the applicant was part of the group that returned down Pennicook Lane" and by reference to the findings of two members of the Court, Bell P and Rothman J, that it was not "open to ... be satisfied that the applicant was part of the group that made its way up to the victims' unit and balcony." The submissions made on behalf of Mitchell Connor adopted the submissions made on behalf of KC. In particular it was contended that the evidence adduced at the trial was "incapable of establishing to the criminal standard that the applicant entered the victims' balcony or unit area." 3. Based on the findings in the principal judgment, the Crown conceded that the convictions were unreasonable and that there was no, or at least insufficient, evidence to establish that either Mitchell Connor or KC returned back along Pennicook Lane or went to the second-floor balcony of the victims' apartment. 4. These submissions should be accepted. In the principal judgment all the members of the Court accepted that it was a reasonable possibility that, of the seven members of the group who walked up Pennicook Lane, only six returned and that was an inference consistent with the innocence of at least SK, BK and MS that was not excluded by the other evidence at the trial (at [4] per Bell P, at [29] to [30] per Rothman J and at [103] per Beech-Jones J). Unless there was some evidence specifically incriminating Mitchell Connor or KC, as a majority found there was with Mobin Sakieh, then they are also entitled to the benefit of that reasonable possibility. Further Bell P, with whom Rothman J agreed, found that, even if the entirety of the group of youths who went up Pennicook Lane returned, "the facts did not in my opinion support the view that the only possible and non-conjectural inference was that all of the appellants together with Mitchell Connor and KC were present on the balcony or in the unit during the assaults" on the victims (at [15] per Bell P and at [36] per Rothman J; Beech-Jones J contra at [103]). Again, unless there was some evidence specifically incriminating Mitchell Connor or KC, as a majority found there was with Mobin Sakieh, then they are entitled to the benefit of that reasonable possibility. 5. In the principal judgment, Bell P and Beech-Jones J found that there was evidence that specifically incriminated Mobin Sakieh in the attack on the two victims, namely certain admissions he made during various intercepted telephone calls (at [17] and [119] respectively). Rothman J took the contrary view (at [49] to [50]). In relation to Mitchell Connor and KC, the Crown's submissions noted that KC's fingerprints were found in EV's car and documents were located inside that car in Mitchell Connor's name. However, the Crown accepted that that evidence "does not establish that either KC or Mitchell Connor returned back on Pennicook Lane or went up to the second-floor balcony". We agree. The evidence at the trial raised various possibilities consistent with innocence as to how Mitchell Connor and KC could have been present in EV's car both before and after the attack on the victims. Their presence in her car at some point was not capable of demonstrating that they returned down Pennicook Lane or entered the balcony area of the victims' unit. 6. Accordingly, we would allow the appeals of each of Mitchell Connor and KC. Orders 1. In respect of the appeal by Mitchell Connor, the Court orders that: 1. The time in which Mitchell Connor can give notice of his intention to apply for leave to appeal against his conviction be extended up to and including 2 July 2021; 2. Leave to appeal be granted; 3. Appeal allowed; 4. Set aside the convictions on Counts 1 and 3 and, in lieu thereof, direct that acquittals on Counts 1 – 4 be entered. 1. In respect of the appeal by KC, the Court orders that: 1. The time in which KC can give notice of his intention to apply for leave to appeal against his conviction be extended up to and including 29 June 2021; 2. Leave to appeal be granted; 3. Appeal allowed; 4. Set aside the convictions on Counts 1 and 3 and, in lieu thereof, direct that acquittals on Counts 1 – 4 be entered. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 July 2021