Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Sutcliffe v R [2014] NSWCCA 208 Hearing dates: 27 August 2014 Decision date: 07 October 2014 Before: Leeming JA; Adams J; Fullerton J Decision: 1. Leave to appeal against conviction granted. 2. Appeal dismissed. Catchwords: CRIMINAL LAW - murder - joint criminal enterprise - four co-accused charged with murder - three convicted of murder, the fourth of manslaughter - whether jury's verdicts inconsistent - evidence capable of sustaining a belief on the part of the fourth that he was acting in self-defence - appeal dismissed Legislation Cited: Crimes Act 1900 (NSW), s 421 Cases Cited: Grant v R [2014] NSWCCA 67 Lane v R [2013] NSWCCA 317 MacKenzie v The Queen (1996) 190 CLR 348 Category: Principal judgment Parties: Sean Sutcliffe (Appellant) Regina (Respondent) Representation: Counsel: G Wendler (Appellant) S Dowling SC (Crown) Solicitors: Van Houten Law (Appellant) Solicitor for Public Prosecutions (Crown) File Number(s): 2013/18174 Decision under appeal Date of Decision: 2013-03-26 00:00:00 Before: Grove AJ Judgment 1THE COURT: Sean Robert Sutcliffe appeals against his conviction, following a 28 day trial before Grove AJ and a jury of 12, of the murder of Jamie Lefoe on 18 January 2011. Leave to appeal is required because the ground of appeal does not involve a question of law alone. For the reasons which follow there should be a grant of leave, and we shall refer to him as the appellant. 2The appellant, together with Darren Michael Hoskins, Michael Patrick Brown and Darrin Troy Moulds, were arraigned before Grove AJ in 2013. The Crown case was that the four men, acting pursuant to a joint criminal enterprise, assaulted the deceased with the intent to cause death or grievous bodily harm. The jury returned verdicts of guilty of murder in the case of the appellant, Darren Hoskins and Darrin Moulds. Michael Brown was found not guilty of murder but guilty of manslaughter. 3The sole ground of appeal is that there has been a miscarriage of justice because the verdict of guilty of murder instead of manslaughter was unreasonable given the jury returned a verdict for the co-accused Michael Brown of not guilty of murder but guilty of manslaughter. 4Darren Hoskins also sought leave to appeal from his conviction. That appeal was heard immediately following the present appeal. Neither appellant relied upon the ground of appeal of the other. A more detailed summary of the facts is contained in this Court's reasons in dismissing the other appeal. 5Given the narrowness of the grounds of appeal, the factual background so far as it is relevant may be summarised very concisely. For present purposes it suffices to say that there was a dispute between the four men and the deceased. The deceased believed that the appellant, Hoskins and Moulds were involved in burning cars in their neighbourhood of Ruse in south-western Sydney, including that of his mother, in the early hours of 18 January 2011. The deceased went to the appellant's house to confront him over the burning of his mother's car. The appellant was not at home. He learnt of the visit from his partner, who said that the deceased had said that he would burn the appellant's car if he did not say who had burnt his mother's car. The appellant then caused a group of men to assemble, to assist him in confronting the deceased. 6The deceased met the appellant at the front of his house later that evening. The deceased was armed with a gun and threatened to shoot Sutcliffe unless he said who had burned the car. At this stage, eight men in two cars including the three co-accused arrived. The victim discharged his pistol, with one of the bullets grazing Darrin Moulds' head. The deceased then ran away from the group and was pursued by the four co-accused. They apprehended him, brought him to the ground and attacked him. The deceased was hit with a blunt object to the head. He was also struck with a knife or machete, including two deep stab wounds in his back as well as cuts to his arm, shoulder and left leg. Some of those cuts went to the bone. 7Each of the four co-accused participated in electronically recorded interviews with police immediately after the attack. None gave evidence at the trial. 8In his interview, the appellant denied striking the deceased in any way. 9Michael Brown's account was quite different. He told police that he was picked up at his home in a car driven by Darrin Moulds, who told him "someone was waving a gun" and "You have to grab your knife um, your machete um, just in case" (A.156). He said that: "That bloke shot at our driver um, several times. We ended up getting out of the car, one of them nearly got run over by the other Darren in the [Pajero], I ended up trying to take the gun of one of the guys who shot Darrin. I swung a machete at his leg um, after that a car got in the way, so I had to move out of the way um, and they were speeding, they crashed um, I ended up going up to the top where the whole scuffle was. ... Darren and Darrin were hitting him, Sean stabbed him um, I ended up holding the majority of every, the machete in my hand and a crowbar or a pole in my hand. I was speaking to a male and a female who own the property and I told them that these guys had guns and they just shot at our car and someone got shot in the head. I ended up pulling Darren off the guy, I don't know if I grabbed his shoe or the guy underneath's shoe, but I grabbed someone's shoe to pull them away. I didn't want no more drama, I was scared um, I wanted to get out of there, I just, I wanted to go home, like I didn't especially want to be shot at." 10Michael Brown also gave this answer to police (A.168): " ... then everybody jumped out of the car, including myself um, I tried to take the gun off the dude or hit it out of his hands and I swung my machete at the back of his legs, 'cause he aimed it at us and myself um, I thought like he was going to shoot me, like he'd shot my mate um, I just didn't want him to have it, but 'cause he still had it I was still scared. I hit him once, I don't know if I hit him after that, I wouldn't, I don't recall me hitting at all. I pulled Darren, not Darrin Moulds, like off the guy, Sean come in from the right from where I was pulling Darren from his leg, he stabbed him, 'cause Darren was pretty much laying on top of him. He stabbed him, the other Darrin was hitting him um, probably in the face, I think Darrin was hitting him, I'm not sure, I don't know." 11The jury's verdict of manslaughter in the case of Michael Brown must have been on the basis of excessive self-defence. The operation of s 421 of the Crimes Act 1900 (NSW) has been restated in this Court in Lane v R [2013] NSWCCA 317 at [50] and Grant v R [2014] NSWCCA 67 at [62]-[65]. The jury's verdict necessarily amounted to (a) the jury being satisfied that the elements of murder had been proven beyond reasonable doubt (b) that Michael Brown genuinely believed that it was necessary to participate in the joint criminal enterprise in order to defend himself, and (c) a reasonable person in his position would not have considered his response reasonable in the circumstances. 12The critical difference, therefore, between the verdicts claimed by the appellant to be inconsistent is the mental state of the appellant, on the one hand, and Michael Brown, on the other. 13The applicable principles governing setting aside jury's verdicts were not in dispute. In MacKenzie v The Queen (1996) 190 CLR 348 at 368, Gaudron, Gummow and Kirby JJ said (citations omitted): "a residue of cases will remain where the different verdicts returned by the jury represent, on the public record, an affront to logic and commonsense which is unacceptable and strongly suggests a compromise of the performance of the jury's duty. More commonly, it may suggest confusion in the minds of the jury or a misunderstanding of their function, uncertainty about the legal differentiation between the offences or lack of clarity in the judicial instruction on the applicable law. It is only where the inconsistency rises to the point that the appellate court considers that intervention is necessarily required to prevent a possible injustice that the relevant conviction will be set aside. It is impossible to state hard and fast rules. 'It all depends upon the facts of the case'." 14Absent from the circumstances of this appeal is any "affront to logic and common sense". The evidence clearly supported the jury concluding that the appellant's mental state was different from that of Michael Brown. The appellant was the organiser of the posse, who was confronted by the deceased. Michael Brown had never met the deceased. He had only met the appellant twice. He was not an organiser. He was younger than his co-accused (at the time of the offence he was aged 20, the appellant was 37, Darren Hoskins 36 and Darrin Moulds 28). 15Most importantly, Michael Brown gave credible answers to the police immediately after the attack as to his involvement, why he was involved in the attack and what he did when it was plain that the deceased no longer posed any threat. Those answers, reproduced above, sustain a finding that it was reasonably possible that Michael Brown subjectively believed his response was necessary to defend himself. 16The appellant's submissions acknowledged the different evidence, open to be accepted by the jury, in relation to him and Michael Brown, but said, nonetheless, that in circumstances where all four men participated in the attack, and indeed Michael Brown carried the machete, the different verdicts satisfied the test in MacKenzie. As it was put orally: "[The jury] had a doubt in relation to Mr Brown that he was acting in self-defence. Why on earth wasn't there a doubt in relation to the others given that it was, as it were, one scenario of events that ultimately led to the death of the deceased?" 17But that submission does not withstand analysis. All four men participated in the attack on the deceased, but there was credible evidence that they did so in different ways and, importantly, with different mental states. The jury's acceptance of the different mental states of the co-accused was plainly open to them in light of the evidence referred to above. That is sufficient to reconcile the verdicts. 18While there should be a grant of leave to appeal, the appeal should be dismissed. ********** 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: 07 October 2014