Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Haines v R [2018] NSWCCA 11 Hearing dates: 17 November 2017 Date of orders: 17 November 2017 Decision date: 16 February 2018 Before: Bathurst CJ; R A Hulme J; Wilson J Decision: 1. Grant the applicant leave to appeal. 2. Appeal against conviction allowed. 3. Conviction quashed. 4. Verdict of acquittal entered. 5. The appellant to be released forthwith. Catchwords: CRIMINAL LAW – appeal – conviction – whether trial judge erred in failing to give reasons for refusing application to exclude evidence of complainant – whether trial judge erred in failure to exclude evidence of complainant – whether verdict unreasonable or unsupported by evidence Legislation Cited: Crimes Act 1900 (NSW) s 35(2) Criminal Appeal Act 1912 ss 5(1)(b), 6(1) Cases Cited: Bell v R [2017] NSWCCA 207 Dickson v R [2017] NSWCCA 78 Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 2 House v The King (1936) 55 CLR 499; [1936] HCA 40 Category: Principal judgment Parties: Raylene Haines (Appellant) Crown (Respondent) Representation: Counsel: T Edwards (Appellant) N Adams (Respondent) Solicitors: O'Brien Criminal and Civil Solicitors (Appellant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2014/322267 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 22 February 2017 Before: Williams SC DCJ File Number(s): 2014/322267 Judgment 1. THE COURT: On 22 February 2017 Ms Raylene Haines (the appellant) was convicted, following a trial before a judge alone, on the charge of causing grievous bodily harm to Abdoul Barghachoun (the victim) while being reckless as to causing actual bodily harm to the victim, contrary to s 35(2) of the Crimes Act 1900 (NSW). Ms Haines appealed against the conviction. On 17 November 2017, without opposition from the Crown, this Court granted leave to appeal, allowed the appeal, quashed the conviction, entered a verdict of acquittal and ordered that the appellant be released forthwith, reserving our reasons. In light of the position taken by the Crown, our reasons for making those orders can be stated briefly. 2. The Crown case at trial was, in short, that the victim had attended the appellant's residence at around 6am on 17 October 2014, yelling that he wanted his mobile phone returned. There was an argument, and the victim was struck with a log to the head by the appellant, and kicked whilst on the ground. The victim sustained significant injuries, including a serious brain injury, and remained in a coma for over a week following the incident. The Crown case primarily relied on the evidence of two witnesses, Mr Danta (a neighbour of the appellant) and the victim, who provided an account to police after waking from the coma, to prove it was the the appellant who struck the victim. 3. The victim gave evidence that he could not remember much about the night of the incident, that it felt like a dream and that what he remembered was in "little blotches". He recalled going to a townhouse near Central Station to consume alcohol with the appellant. He had Valium and a few cones of marijuana in his system. He recalled speaking to a police officer at the townhouse in the middle of the night, who told him to move on. He gave evidence that he returned to the townhouse around six or seven in the morning because his phone or wallet was missing. He asked the appellant to give him his phone back, to which the appellant said "F off" a few times. He gave evidence that as he was walking out of the gate, the appellant hit him with something over his head, and someone "booted" him in the mouth. He gave evidence that when he was first spoken to by police, he couldn't remember the appellant's name, but police asked him "could it have been [the appellant]" and when the appellant's name was said "it started to just fall into place in my head". 4. In cross-examination, the appellant agreed he had difficulty remembering the incident, and that it was possible he told nursing staff that his partner had hit him with a big stick but that he could not recall doing so. He denied that he had no independent memory of what happened, and maintained that it was the appellant who was responsible for striking him, and that someone kicked him in the mouth. He stated that his dreams had influenced his memory of the incident. He gave evidence that the appellant's boyfriend (Mr Craig Campbell) was also present at that time. The victim conceded that when he was first asked by police about the incident he could not remember what happened, and that police jogged his memory, but maintained he remembered what happened instantly after the police had told him. He also agreed that his back was turned when he was struck on the head and he was not looking at the person who struck him. 5. Mr Danta gave evidence that at around 3:00am he heard banging and a male voice yelling for his keys to be returned at the house across the road from his residence. At around 6:00am or 7:00am when the sun was coming up, the man returned, asking for his keys, phone, and wallet. Mr Danta gave evidence that a person, who he understood to be the appellant, charged at the man in front of the house, the man fell over backwards and the appellant stood over him. The man wandered off after a few minutes. Mr Danta did not see the appellant's hands when she charged at the man, and did not recall whether he saw any physical contact after the man fell. Mr Danta agreed his view of the events was brief and fleeting, he stated that he did not see a male other than the victim but that it was possible someone was out of his line of sight. He conceded that when shown photographs by the police, he was unable to identify the appellant as the person involved in the assault, nor was he able to identify the victim. He conceded he did not have a clear view of the person who did the striking because they were obstructed by the victim and the incident was very quick. He also gave evidence that he heard an abusive male voice from within the house at the time of the incident, who was also interacting with the victim. 6. At the trial, the appellant advanced the hypothesis that the prosecution could not exclude beyond reasonable doubt that it was in fact Mr Campbell who had struck the victim. In determining this issue, the trial judge concluded as follows: "Taken in conjunction with the observations of Mr Danta and the admissions by the accused as to her presence at the scene, notwithstanding the various warnings that I have given myself, I am satisfied beyond reasonable doubt that the Crown case has been established. I do not think there is a reasonable possibility that the version given by the accused in the recorded interview, which inculpated Craig Campbell could be true in circumstances where the victim denies the possibility that he was present and Mr Danta also denies that possibility. That is the only alternative hypothesis propounded by counsel for the accused and, having rejected that alternative hypothesis as being not reasonably open on the evidence, I find the offence proved beyond reasonable doubt." 1. The appellant sought leave to appeal on the following three grounds: 1. The trial judge erred in failing to give reasons for refusing the application to exclude the evidence of the complainant. 2. The trial judge erred in failing to exclude the evidence of the complainant. 3. The verdict of guilty was unreasonable and could not be supported having regard to the evidence. 1. In its written submissions filed before the hearing, the Crown conceded Ground 1, namely, that the trial judge should have given reasons for the admission of the complainant's evidence (over objection from the appellant), but submitted that the proviso in s 6(1) of the Criminal Appeal Act 1912 (NSW) should be applied because in the circumstances, the failure to do so did not result in a substantial miscarriage of justice. In relation to Ground 2, the Crown submitted that the appellant's arguments as to the purported weaknesses in the victim's evidence, did not identify House v The King (1936) 55 CLR 499; [1936] HCA 40 error on the part of the trial judge, and that the evidence was correctly admitted. 2. In relation to Ground 3, the Crown initially submitted that the verdict was not unreasonable and was supported by the evidence. However, in supplementary submissions handed up at the outset of the Court of Criminal Appeal hearing, the Crown conceded that the conclusions reached by the trial judge based on the evidence of the victim and Mr Danta were not available and the trial judge fell into error. 3. It should be noted that as Ground 3 involved a mixed question of fact and law, leave to appeal was required pursuant to s 5(1)(b) of the Criminal Appeal Act, and sought by the appellant. We granted leave to appeal at the hearing, given our conclusion that the ground must succeed. 4. The nature of an appeal on the ground that the verdict is unreasonable or cannot be supported and the principles to be applied were not in dispute between the parties. The ground invokes s 6(1) of the Criminal Appeal Act, which provides: "(1) The court on any appeal under section 5 (1) against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal; provided that the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred." 1. The principles on which a court will set aside a verdict as unreasonable are well established and were explained in Dickson v R [2017] NSWCCA 78 at [84]-[86]. The nature of an appeal on this ground after a trial by judge alone was explained by the Court in Bell v R [2017] NSWCCA 207 at [20]-[27]. It is unnecessary to repeat the comments from either of those cases here, save to note that to the extent that the argument in support of a ground of appeal under s 6(1) takes issue with the correctness of the trial judge's intermediate findings of fact, this Court must have regard to the reasons stated by the trial judge: see Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 2 at [12] (French CJ, Bell, Keane and Nettle JJ), [81]-[83] (Gageler J). With these principles in mind, it is appropriate briefly to explain our reasons for accepting the Crown's concessions. 2. As submitted in the Crown concession, the victim did not deny the presence of Mr Campbell at the scene, and also complained that after he was struck on the head, Mr Campbell had "booted him in the mouth". He also affirmed that Mr Campbell was present when the incident occurred. 3. Mr Danta's evidence, however, was that a female person charged at the victim. He did not give evidence that he saw the appellant strike the victim, nor that she struck him with a log. In evidence-in-chief, Mr Danta stated he could not recall whether he saw any person other than the appellant involved in the incident, and agreed in cross-examination that it was possible there was a male person outside of his line of sight in the area near the doorway. His evidence did not exclude the presence of a male person other than the complainant, but rather he asserted he didn't "recall seeing a male". 4. It is clear from a review of the evidence that the trial judge's conclusion that the victim and Mr Danta both denied the presence of Mr Campbell was erroneous. As is evident from the trial judge's reasons extracted at [6] above, this error is inextricably linked to the trial judge's rejection of the appellant's competing hypothesis, and his finding that the offence was proved beyond reasonable doubt. 5. In the circumstances, the Crown properly conceded that this Court would not be satisfied that no substantial miscarriage of justice had actually occurred. It followed that the conviction had to be quashed. Given the nature of the error, being that the evidence was incapable of supporting a finding of guilt beyond reasonable doubt, it was not appropriate to order a new trial. 6. For those reasons, the Court made the following orders on 17 November 2017: 1. Grant the applicant leave to appeal. 2. Appeal against conviction allowed. 3. Conviction quashed. 4. Verdict of acquittal entered. 5. The appellant to be released forthwith. ********** 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: 16 February 2018