R v Hunyh [2004] NSWCCA 79

New South Wales Court of Criminal Appeal

CITATION : R v Hunyh [2004] NSWCCA 79 HEARING DATE(S) : 22 March 2004 JUDGMENT DATE : 22 March 2004

JUDGMENT OF : Studdert J at 1; James J at 12; Dunford J at 13 DECISION : Appeal allowed; convictions and sentences quashed; verdicts of acquittal entered.

PARTIES : Regina v Simon Hunyh FILE NUMBER(S) : CCA 60431/03 COUNSEL : G. Rowling (Crown) R. Hulme SC (Appellant) SOLICITORS : S. Kavanagh (Crown) S. E. O'Connor (Appellant)

LOWER COURT District Court JURISDICTION : LOWER COURT 02/21/3097 FILE NUMBER(S) : LOWER COURT Dodd DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60431/03

STUDDERT J JAMES J DUNFORD J

Monday 22 March 2004 REGINA v SIMON HUNYH Judgment 1 STUDDERT J: The appellant, Simon Hunyh, stood trial in the District Court upon the presentation of an indictment charging him with nine offences. After a three week trial the jury acquitted him of seven of the nine counts but found him guilty on two counts. The offences which resulted in verdicts of guilty were offences of detain for advantage and armed robbery with a dangerous weapon. 2 On 5 May 2003 Judge Dodd sentenced the appellant to a total of three years imprisonment with a non-parole period of two years but the sentence was backdated to the date of his arrest, 4 August 2001. The appellant was released on parole on 4 August 2003. A Crown appeal against sentence has been abandoned. 3 On the night of 3 August 2001, two men responded to an invitation to go to a person's house to play cards for money. When the game was about to commence a number of men armed with hand guns entered the room and accosted the two invitees. These victims were assaulted, threatened, tied up and possessions were taken from them. Each sustained bodily harm. The victims were tied up overnight and on the following day one of the men was required to accompany two of the offenders to the victim's home to obtain the registration papers to his car and then to accompany those two offenders to a motor registry where one of the offenders effected a transfer of the registration of the victim's car. Those offenders then drove off in the victim's car. Some time later the appellant was arrested. 4 The appellant has appealed against his conviction which was based upon his asserted involvement in the criminal enterprise briefly summarised above. Two grounds of appeal have been relied upon. It is necessary only to refer to the first of these grounds, namely, that the verdicts of guilty to count 1 and count 7 were unreasonable and cannot be supported having regard to the evidence. 5 The Crown now accepts that the verdicts, the subject of the appeal, are unreasonable and cannot be supported by the evidence. 6 The Crown now accepts, therefore, that the appeal should be allowed. 7 This being so, I do not propose to review the evidence in any detail, but it seems to me that the approach that the Crown has adopted is a responsible one. 8 The primary issue at the trial was the correctness of identification of the appellant. One of the victims identified the appellant as being a man who was amongst the group of offenders on the night that the victims were assaulted and tied up. The other victim also identified him as having been armed and involved. However, the acquittal of the appellant on seven of the nine counts, conveys that the jury had a reasonable doubt about the correctness of that identification evidence and the guilty verdicts can only be explained on the basis that the jury found the evidence that the appellant was one of those who was present in the motor registry when the registration was transferred, established the appellant's guilt. 9 There was independent evidence in the form of a video film from the motor registry from which the appellant was identified as being present at the registry when the registration papers were presented and the appellant offered an explanation for that presence which the jury may have found unacceptable. However, the flaw in the Crown case was that the victim who was accompanied to the registry gave evidence that the appellant was not one of those who accompanied him there. 10 It seems to me that upon the whole of the evidence, it was not open to the jury to be satisfied beyond reasonable doubt as to the appellant's guilt. 11 These convictions are unreasonable and, consistently with the concessions made by the Crown, I propose: