TWL v R (No 2) [2012] NSWCCA 93

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: TWL v R (No 2) [2012] NSWCCA 93 Hearing dates: On the papers Decision date: 15 May 2012 Before: Macfarlan JA at [1] RA Hulme J at [8] Garling J at [9] Decision: The application is dismissed. Catchwords: CRIMINAL LAW - conviction appeal - unreasonable verdict ground - application of SKA v The Queen [2011] HCA 13; 243 CLR 400 where order for retrial made - whether necessary or appropriate for Court to express view on issue of appellant's guilt Cases Cited: Almeddine v R [2012] NSWCCA 63 SKA v The Queen [2011] HCA 13; 243 CLR 400 Category: Procedural and other rulings Parties: TWL (Appellant) Regina (Respondent) Representation: Counsel: H Dhanji SC (Appellant) M M Cinque (Respondent) Solicitors: Legal Aid Commission NSW (Appellant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2009/51303 Decision under appeal Citation: Regina v TWL Date of Decision: 2011-04-20 00:00:00 Before: Coolahan DCJ File Number(s): 2009/51303

Judgment 1MACFARLAN JA: By order made on 16 February 2012 this Court quashed the appellant's conviction for the manslaughter of Mr Jamie Purdon on 20 February 2009. By judgment of 5 April 2012, the Court gave its reasons for making that order and, for reasons that it stated, made an order that the appellant be retried. 2Within 14 days of that judgment, the appellant applied pursuant to r 50C of the Criminal Appeal Rules for the setting aside of the order for his retrial. He submitted, first, the Court had not dealt fully with his ground of appeal that the verdict of the jury was unreasonable and could not be supported having regard to the evidence and, secondly, that if the Court completed its consideration of that ground of appeal it should, and would, conclude that the order for retrial should be set aside and a verdict of acquittal of the appellant entered. 3The application appears to proceed upon the assumption that when I dealt with this ground of appeal in my judgment of 5 April 2012 I did no more than conclude that as a matter of law there was evidence capable of sustaining the jury's verdict of guilty (see SKA v The Queen [2011] HCA 13; 243 CLR 400 at [20], second sentence). This assumption is erroneous. As is apparent from my discussion in the judgment of the evidence that was given at the trial, I made a full and independent assessment of it. This led me to conclude that it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of the offence charged ([66]). This conclusion was to the same effect as that reached by Grove AJ (with the concurrence of McClellan CJ at CL and Johnson J) in Almeddine v R [2012] NSWCCA 63 where his Honour stated, after receiving the evidence, that "I do not conclude that it would be dangerous in all the circumstances to allow the verdict of guilty to stand" (at [63]; and see SKA at [14]). 4Moreover, my conclusion fulfilled the requirement stated in SKA at [21] that the Court of Criminal Appeal "determine whether the evidence was such that it was open to a jury to conclude beyond reasonable doubt that the applicant was guilty of the offences with which he was charged". 5I declined however to take the additional step of answering the further question posed in SKA of "whether on the evidence the Court was satisfied that the applicant was guilty of the offences" (at [59]-[60]; SKA at [20]). I indicated that I did that because it was inappropriate for me to form and express a view, based upon what I had found to be a flawed trial process, as to whether at the trial the Crown proved beyond reasonable doubt that the appellant was guilty of the offence charged ([60]). I remain of that view. 6For this Court to answer that question in the affirmative would be unfair to the appellant, given that he did not have a fair opportunity to defend the Crown's case and the correct directions were not provided to the jury. My view, expressed after an independent assessment of the evidence, that it was open to the jury on the evidence before it to be satisfied beyond reasonable doubt that the accused was guilty of the offence was sufficient to disentitle the appellant to an acquittal. It would have brought the administration of justice into disrepute for this Court to have expressed the view that the Crown had proved beyond reasonable doubt that the appellant was guilty of the offence charged when the appellant was to stand trial again and have the benefit of the presumption of innocence at that further trial. 7For these reasons I propose that the appellant's application be dismissed. 8RA HULME J: I agree with Macfarlan JA. 9GARLING J: I agree with Macfarlan JA.