Amante v R [2020] NSWCCA 34

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Amante v R [2020] NSWCCA 34 Hearing dates: 12 February 2020 Date of orders: 11 March 2020 Decision date: 11 March 2020 Before: Payne JA Beech-Jones J N Adams J Decision: (1) Application for leave to appeal against sentence is granted. (2) The appeal is dismissed. Category: Principal judgment Parties: Michale Amante (Applicant) Regina (Respondent) Representation: Counsel: Mr T Ramrakha (Applicant) E Balodis (Respondent)

Solicitors: Legal Aid Commission of NSW (Applicant) NSW Solicitor for Public Prosecutions (Respondent) File Number(s): 2018/106512 Publication restriction: Nil Decision under appeal Court or tribunal: District Court Date of Decision: 01 May 2019 Before: Judge Colefax SC File Number(s): 2018/106512

Judgment 1. PAYNE JA: I agree with N Adams J. 2. BEECH-JONES J: The background to the application is set out in the judgment of N Adams J. I agree with her Honour's conclusions and reasons in relation to ground 2. 3. In relation to ground 1, I agree with N Adams J that the challenge to the finding that fire entering the unit block's roof void "posed a serious structural risk to the integrity of the building" should be addressed by considering the evidence that was said to support it and not by considering whether it was a matter in respect of which the sentencing judge could have taken judicial notice. It suffices to state that judicial notice could never support a finding about the probability of structural damage to a specific building, as opposed to say, the potential for fire to cause structural damage to a building. 4. The material said to support the finding made by the sentencing judge was the agreed facts and the photographs described by N Adams J at [59]. In that regard, it is necessary to say something about the role of this Court in relation to the reception and use of photographic evidence admitted at first instance. The issue has been addressed by the Court of Appeal, most recently in Goode v Angland [2017] NSWCA 311 ("Goode") at [89] to [97] where Beazley P reviewed various decisions of that Court on this topic. Her Honour described those decisions as establishing "principles relating to the reception into evidence and the use that may be made of photographic evidence" (at [89]). Her Honour's review included passages from various decisions that warn of the "care" that needs to be taken in relying on photographic evidence (eg, Herne Investments (NSW) Pty Limited v Don Watson Proprietary Limited [2016] NSWCA 72 at [42]). However, some of the "principles" are expressed in prescriptive terms. Thus, for example, Angel v Hawkesbury City Council (2008) Aust Torts Reports 81-955; [2008] NSWCA 130, at [69]-[72] is cited in Goode for the proposition that "photographic evidence could not trump the direct evidence of witnesses that compelled acceptance" (Goode at [93]). Further, in Blacktown City Council v Hocking [2008] NSWCA 144 at [169], Tobias JA stated: "It should be noted that the use by a trial judge of photographs is nothing new. They can, as the authorities to which I have referred confirm, be descriptive of what a witness says he or she saw, being a representation of the witness' knowledge and observations. But they should not be used by a judge to make findings of fact which are otherwise unsupported by the evidence and are therefore no more than conjectural: Schmidt v Schmidt [1969] QWN 3 at 6 ["Schmidt"]; Beaton v McDivitt (1985) 13 NSWLR 134 at 142." (emphasis added) ["Beaton"]. 1. Schmidt is an English decision and Beaton was a judgment of Young J (as his Honour then was) sitting at first instance. Neither of them concerned the Evidence Act 1995. In light of its passage, the status of some of the "principles" identified in Goode is open to question. 2. After the Evidence Act was enacted the power of the courts in the judicial hierarchy of this State to enunciate rules concerning the reception and use of evidence was truncated by s 9(1) of the Evidence Act, specifically, they can only do so to the extent that they are enunciating "a principle or rule of common law or equity" and only insofar as the Evidence Act does not provide "otherwise expressly or by necessary intendment". To the extent that the various "principles" discussed in the decisions reviewed in Goode concern the reception into evidence of photographs, then that is clearly a subject for which Chapter 3 of the Evidence Act expressly provides. It is otherwise doubtful that the various prescriptive statements to which I have referred amount to "a principle or rule of common law or equity", because if they were then presumably juries would have to be instructed to apply them, which to date, and for good reason, they have not. Perhaps at most these "principles" might be taken as identifying a possible category of unreliable evidence for the purposes of s 165 of the Evidence Act. At least so far as jury trials are concerned the Courts must observe that provision and not the Court of Appeal statements, to the extent they are inconsistent. In that regard, s 165 preserves to the jury the question of the ultimate weight to be attached to evidence falling within a category that might be considered unreliable. 3. Whatever be the position in the Court of Appeal, absent the application of some particular provision of the Evidence Act, this Court has no authority to specify any rules of its own concerning the reception into evidence of, and the manner of use or weight to be attached to, any category of material by trial courts at first instance, including photographs. The admission of evidence at a criminal trial is governed by the Evidence Act. The use of and weight to be attached to such material is, subject to the provisions of the Evidence Act, for the trier of fact. This Court's role in reviewing the weight that was attached or should have been attached to evidence that is said to support a conviction is (generally) confined to reviewing any conviction to ascertain whether it is "it is unreasonable, or cannot be supported, having regard to the evidence" (Criminal Appeal Act 1912, s 6(1)), including any photographic or video evidence that is tendered. 4. In relation to sentence proceedings, the Evidence Act may or may not apply depending on whether a direction under s 4(2)(a) has been given. As noted by N Adams J (at [55] to [56]), the test to be applied by this Court in considering factual findings made in a sentencing judgment is the subject of some controversy (cf R v O'Donoghue (1988) 34 A Crim R 397; "O'Donoghue"; with Hordern v R [2019] NSWCCA 138 at [20]; "Hordern"). However, nothing in the Criminal Appeal Act expressly or implicitly confers authority on this Court to direct sentencing judges as to the weight they must attach to particular categories of evidence such as photographic evidence, including by doing so in a manner enunciated in the various decisions of the Court of Appeal collated in Goode. All that can be accurately and usefully said is that it depends on the case and it depends on the photograph. In this case, for the reasons given by N Adams J, having regard to the photographs and the agreed facts, the sentencing judge's finding was not "mistaken" (Hordern) and was therefore "open" (O'Donoghue). 5. I agree with the orders proposed by her Honour. 6. N ADAMS J: The applicant seeks leave to appeal under s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) against the sentence imposed on him by Colefax SC DCJ sitting in the Parramatta District Court on 1 May 2019: R v Amante [2019] NSWDC 222. 7. The applicant, whilst under the influence of crystal methamphetamine ("ice") threatened his estranged partner in breach of an apprehended violence order ("AVO") and subsequently set fire to her Department of Housing unit causing significant damage, potential danger and hardship to other residents. 8. The applicant pleaded guilty in the Local Court to one charge of intentionally or recklessly damaging a building by fire contrary to s 195(1)(b) of the Crimes Act 1900 (NSW), charged as a domestic violence offence: s. 12 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). The maximum penalty for such an offence is 10 years imprisonment. The applicant was sentenced to imprisonment for 3 years and 9 months comprising a non-parole period of 2 years to commence on 4 October 2018 and expire on 3 October 2020 with a balance of term of 1 year and 9 months to commence on 4 October 2020 and expire on 3 July 2022. 9. The applicant relies upon two grounds of appeal. Ground 1 contends that the sentencing judge erred in taking "judicial notice" of the fact that the fire in the roof cavity "posed a serious structural risk to the integrity of the building". Ground 2 alleges error in the way in which his Honour dealt with the applicant's mental health issues; in particular in finding that they were "largely untreated and largely unresolved".