Ewan v R

GROUND 1: DIRECTION TO JURY THAT IT MUST BE UNANIMOUS AS TO THE PARTICULAR ASSISTANCE

The offence of being an accessory after the fact

1. The general law principles as to what constitutes a person an accessory after the fact were stated by the English Court of Criminal Appeal in The King v Levy [1912] 1 KB 158. In that case, the Court held at 161 that "[g]enerally, any assistance whatever given to a felon, to hinder his being apprehended, tried or suffering punishment, makes the assistor an accessory". The Court then confirmed the correctness of the direction given to the jury in that case that "they ought not to convict the appellant unless they were satisfied that the appellant did the acts complained of with the knowledge that Green, the principal, was guilty and for the purpose of assisting him to escape conviction" (at 161). Elements of the offence thus include assistance to the principal offender and knowledge of his crime.
2. As to the element of assistance, R A Hulme J in R v Stanford (Marcus) [2016] NSWSC 1174 collected examples of acts which would constitute relevant assistance (at [3]): "There is a wide variation in the possible degrees of culpability of a person who commits this offence: R v Farroukh and Farroukh (Court of Criminal Appeal (NSW), 29 March 1996, unrep). It may be committed by someone who helps the principal offender to dispose of the body (e.g. R v Faulkner [2000] NSWSC 944 and R v Quach [2002] NSWSC 1205); or to hide or get rid of incriminating evidence (e.g. R v Gersteling [2004] NSWSC 502 and R v Cowen [2008] NSWSC 104); or to get away from the crime scene, or the jurisdiction (e.g. R v Mirad [2004] NSWSC 701). It may be committed by someone who deliberately tells lies to cover up the crime, or the identity of the principal offender (e.g. R v Phan [2001] NSWSC 1069; 126 A Crim R 257 and R v Dileski [2002] NSWCCA 345; 132 A Crim R 345). There are other forms of assistance that may be given as well but the critical thing is that, with knowledge of the primary offence, the offender does something which has a tendency to assist the principal to avoid justice by escaping detection or punishment".
3. In R v Dileski [2002] NSWCCA 345; (2002) 132 A Crim R 408 at [8], Hidden J (with whom Adams J agreed), emphasised that "it is only assistance which helps the principal offender to evade justice which is embraced by the offence of being an accessory after the fact", whilst in R v Byrnes [2019] NSWSC 615 at [20]-[21], Rothman J held that it was sufficient if the act relied upon had the potential to assist the principal offender, even if it did not do so. His Honour however noted that it was not sufficient if the act relied on was only intended and not in fact committed. His Honour referred in this regard to R v Maloney (1901) 1 SR (NSW) 77 where the accused intended to assist the principal offender by providing him with a box of clothes but the box did not arrive. As a result, the intended act of assistance was not committed, and did not constitute the accused an accessory after the fact.
4. The requisite knowledge of the principal offender's crime was considered by Crockett J in R v Stone [1981] VR 737 at 740. His Honour held that the prosecution must prove that the accused had knowledge of the facts that established the particular crime committed by the principal offender, and not simply know that the principal offender had committed a crime falling within a "genus of crimes". It was not suggested in the present case that if the applicant's knowledge was that Jorde Ewan had killed Mr Murphy, rather than inflicting grievous bodily harm on him, that that precluded a finding by the jury of relevant knowledge. Presumably this was on the basis that it would at least have been open in the present case for the jury, even if it considered that the applicant knew that Mr Murphy had been killed, to conclude that his death would not have been instantaneous, that there would have been at least an instant of time when Mr Murphy was grievously injured before he died and that the applicant would have known or believed that to be the case.

Whether a specific unanimity direction was required

1. With this introduction, I turn to the first ground of appeal, pursuant to which the applicant contends that where a prosecutor alleges that the accused has, with the requisite knowledge, committed more than one act of assistance, any one of which would constitute the accused an accessory after the fact, the jury must be directed that, before finding the applicant guilty, its members must be satisfied unanimously as to which particular act or acts constituted the relevant assistance. This proposition is supported by the decision of this Court in Lane v R [2017] NSWCCA 46 which was reversed on appeal to the High Court (Lane v the Queen (2018) 92 ALJR 689; [2018] HCA 28) on a different point, namely the application in the circumstances of that case of the proviso to s 6(1) of the Criminal Appeal Act 1912 (NSW).
2. The majority judgment in this Court in Lane adopted as an accurate statement of relevant principles the following passage from R v Walsh [2002] VSCA 98; (2002) 131 A Crim R 299 at [57]: "To sum-up the foregoing, it seems that the cases give rise to two situations at least (and if there be tension between them, this is not the case to resolve it, for it is only the second with which we are now concerned). The first is that exemplified by the cases concerning murder and manslaughter, where, when alternative legal bases of guilt are proposed by the Crown but depend substantially upon the same facts, there is no need for a direction on "unanimity" about one or other or more of those bases, at least if they do not 'involve materially different issues or consequences'. (How far in cases of murder or manslaughter this qualification extends - having regard especially to Clarke and Johnstone which has been long accepted in Victoria and to the similar practice in New South Wales - is of no present relevance). The second situation is where one offence is charged, such as obtaining property by deception, but a number of discrete acts is relied upon as proof and any one of them would entitle the jury to convict. If those discrete acts go to the proof of an essential ingredient of the crime charged, then the jury cannot convict unless they are agreed upon that act which, in their opinion, does constitute that essential ingredient. In this type of case, much will depend 'upon the precise nature of the charge, the nature of the prosecution's case and the defence and what are the live issues at the conclusion of the evidence'. When the charge is obtaining property by deception by means of misrepresentation, the making of the misrepresentation has been regarded as an essential ingredient of the crime charged. It is otherwise, however, where the crime is conspiracy to defraud and the means agreed upon by the conspirators to achieve that end is the making dishonestly of false representations. The agreement to make any particular representation is not regarded as an essential element of the crime, but merely a path to arriving at the objective of the conspirators, namely, obtaining an advantage by fraud" (citations omitted).
3. As the Crown in Lane relied on two discrete acts of the appellant as constituting an element of the crime with which he was charged, this Court held that the jury should have been, but was not, instructed that it had to be unanimous as to the appellant's commission of the act or acts it considered to be the foundation of the appellant's guilt.
4. On this question, the majority in the High Court in Lane took the same approach in saying at [45]: "The appellant could not have been lawfully convicted by the jury unless it was agreed upon the action by the appellant that caused the deceased's fatal injury. In the absence of a unanimity direction, the basis of the verdict is necessarily uncertain as to the act or acts of the appellant on which it was founded …" (citations omitted).
5. To like effect was the decision in Chiro v The Queen (2017) 260 CLR 425; [2017] HCA 37 concerned with an offence of persistent sexual exploitation of a child. As the offence was held to be constituted by underlying acts of sexual exploitation, "in order to convict an accused of [the offence] a jury must reach unanimous agreement … that the Crown has proved beyond reasonable doubt that the accused committed the same two or more underlying acts of sexual exploitation … " (at [19], [42]; and see KMC v Director of Public Prosecutions (SA) [2020] HCA 6 at [32]).
6. To address Ground 1 in the present case, it is therefore necessary to identify as follows the way in which the Crown put its case concerning assistance by the applicant, that is, to adopt the language used in Walsh (see [35] above), to identify "the live issues at the conclusion of the evidence".
7. The issues remaining at the end of the trial concerning assistance were encapsulated in the Written Instructions for Jury provided to the jury by the trial judge. Relevantly, these stated: "In this case, the Crown alleges that the accused assisted the principal offender Jorde Ewan by (1) assisting the principal offender Jorde Ewan to leave the scene as soon as possible, (2) fabricating a story about being assaulted by Michael Murphy on the Saturday morning and (3) by lying to police about not knowing who was associated with his utility on the Saturday night. The Crown says this was done with the purpose of (1) assisting the principal offender Jorde Ewan to evade arrest just after the assault, (2) to give Jorde Ewan a possible defence and (3) to prevent police positively identifying Jorde Ewan as the principal offender and prevent a successful prosecution. You do not have to be satisfied beyond reasonable doubt that this was done for all three purposes. It is sufficient for the Crown to prove it was done for at least one of the purposes."
8. It was implicit in what his Honour said that it was not only sufficient for the Crown to prove one of the identified purposes but, more presently relevant, that it was also sufficient for the Crown to prove just one of the acts of assistance alleged. Elsewhere in the Written Instructions for Jury, his Honour used the word "or" in referring to the assistance alleged by the Crown, making it clear that the jury only needed to find that one of the three acts of assistance was established. For example, the following heading appeared in the document: "3. That the accused with that knowledge, intentionally assisted the principal offender Jorde Ewan by helping him evade arrest knowing he had just recklessly caused Mr Murphy grievous bodily harm or fabricating a possible defence for Jorde Ewan or by lying to police by failing to identify Jorde Ewan as being in his utility on the night of the offence".
9. This was again made explicit in his Honour's oral summing-up when, instead of using the word "and" in describing the three acts of assistance that the Crown alleged, his Honour used the word "or", making it clear that they were alternatives. I accordingly reject the Crown's submission made on appeal that the jury was instructed that it had to be satisfied that all of the acts of assistance occurred.
10. The jury was not at any stage instructed that it had to be unanimous as to the act or acts which it considered constituted "assistance" on the part of the applicant. For the reasons I have given above, it ought to have been so instructed. Consistent with the manner in which it had been directed, the jury's verdict was simply that the applicant was guilty of the offence with which he was charged. Accordingly, for all that the record of the trial reveals, different jurors may have taken different paths to their conclusions that the applicant was guilty of the offence - some may have considered that only the first of the three acts of assistance alleged was established whilst others may have considered that the second or third act of assistance only was established.

Conclusion

1. As the applicant did not seek at trial the direction that he asserts on appeal should have been given, r 4 of the Criminal Appeal Rules applies. This rule precludes the applicant taking the point on appeal in the absence of a grant of leave under r 4 to do so.
2. Leave should in my view be granted because, as occurred in Lane, the "absence of the necessary direction means that it cannot be assumed that the jury discharged its function to reach a unanimous verdict as the tribunal of fact" (Lane 92 ALJR 689 at [47]). The jury in the present case was thus misdirected in a way that was "apt to prevent the performance by the jury of its function" (ibid at [48]). That "without more" resulted in a substantial miscarriage of justice (ibid). Leave should be granted under r 4 in such a case (Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 at [72]).
3. I note in conclusion on this ground of appeal that on appeal the applicant's counsel pointed out that the indictment alleged that the relevant assistance was given only on 15 July 2017, not on the two subsequent dates when assistance was also allegedly given. It is in my view sufficient to respond that the point is of no significance at least for the reason that the applicant's trial counsel raised no such point at the trial.
4. In these circumstances, Ground 1 must be upheld and the applicant's conviction quashed.

GROUND 2: WHETHER THE TRIAL JUDGE ERRED IN PERMITTING EVIDENCE OF THE CONDUCT OF THE APPLICANT TO BE USED TO INFER CONSCIOUSNESS OF GUILT

1. This ground relates to: 1. The applicant's evidence that he attended Sutherland Hospital on 16 July 2017 in relation to an injury he sustained on the morning of 15 July 2017 when Mr Murphy hit him with a frying pan (see [23] and [28] above). In cross-examination, the applicant denied that he lied to the hospital about how he sustained the injury. 2. The applicant's responses to formal demands made upon him by the police for information concerning the use of his utility vehicle on the evening of 15 July 2017. In his evidence, the applicant admitted that he lied in stating to the police that he did not recall what had happened in relation to the vehicle on that evening.
2. With the concurrence of the parties, the trial judge gave to the jury in his Summing-Up (as well, in the case of the police demand evidence, when the evidence was given) conventional Edwards directions (see Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63) informing it that there may be many reasons why a person might lie and that in order to use any lies it found as some evidence of the applicant's guilt the jury must be satisfied that the applicant told the lies because he feared that the truth would implicate him in the offence of which he was charged. As Hoeben CJ at CL (R A Hulme and Davies JJ agreeing) explained in Gall v R; Gall v R [2015] NSWCCA 69 at [86], the rationale for Edwards directions is that "while being capable of allowing a legitimate inference of guilt, [lies] may also be readily explained by another innocent or less culpable motivation".
3. On appeal, the applicant contended that the giving of these directions had the effect of leaving to the jury, for its consideration, use of the applicant's lies or alleged lies as evidence of the applicant's consciousness of his guilt and thus as of relevance to whether the jury should find him guilty of the offence charged. The applicant contended that the directions should not have been given because in its final address to the jury the Crown relied on the relevant evidence as evidence of acts of assistance of Jorde Ewan and did not rely upon it as evidence of the applicant's consciousness of guilt. The implication in the applicant's submissions that the Crown confined itself to use of the evidence in the former way is not however correct. It is correct that the Crown only relied upon the evidence in this way in its final address but it is clear from the trial judge's description of the Crown's case, given in his Honour's Summing-Up, to which no relevant objection was taken, that the Crown relied upon the evidence in the second way as well (see in particular pp 30 and 31 of the Summing-Up). This reflected what his Honour had said, without objection, in a voir dire judgment given at the end of the Crown case.
4. The applicant's counsel submitted that there was an inconsistency in the Crown alleging that the applicant's "motive in acting [was] to assist his son while at the same time inviting an inference that his motive [was] to assist himself". I do not however consider that there is any such inconsistency. There is for example no reason in principle why the applicant might not be considered to have lied in response to the police demands for the purpose of protecting both himself and his son from prosecution.
5. For the following reasons, it was appropriate for the trial judge to give the Edwards directions and thereby leave the question of consciousness of guilt to the jury for its consideration.
6. First, as indicated above, the Crown put to the applicant in cross-examination that he had lied at the hospital. It was appropriate that the jury be directed as to how to proceed in the event that it rejected the applicant's denial of that proposition.
7. Secondly, the applicant admitted in his evidence that he lied in responding to the police demands. It was necessary for the jury to be given guidance as to how it could use that evidence.
8. Thirdly, as noted already, the Crown did rely upon the evidence as revealing a consciousness of guilt because the Summing-Up said so and neither party objected to that being said.
9. Fourthly, the applicant's position at trial went beyond acquiescence in the Edwards directions being given as the need for them was first raised by the applicant's counsel, who also later reminded the judge of the need to give the direction.
10. Fifthly, in his closing address, defence counsel recognised that the jury would have to consider whether the lies were told out of a consciousness of guilt. Counsel asked the jury to consider whether the lies concerning the police demand were instead told because the applicant was confused or simply wanted to exercise his right to silence. The Edwards directions confirmed, favourably to the applicant, the appropriateness of the jury considering this question posed to it by his counsel.
11. The Edwards directions were thus proper. They served the important purpose of focusing the jury's mind on the purpose for which the lies (or alleged lies) were told. There was no prejudice to the applicant in this occurring and indeed, as noted above, the directions were echoed in defence counsel's closing address.
12. The lack of merit in this ground of appeal is confirmed when regard is had to r 4 of the Criminal Appeal Rules. The applicant requires leave under that rule to raise the present point as it was not raised at trial. That leave should be refused because no injustice to the applicant would result from him being denied the ability to raise the point on appeal.
13. For these reasons, Ground 2 should be rejected.

GROUND 3: THE VERDICT OF THE JURY WAS UNREASONABLE

1. This Ground invokes s 6(1) of the Criminal Appeal Act 1912 (NSW). The question to be addressed by this Court is "whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty" (R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [66], approving M v The Queen (1994) 181 CLR 487 at 494-495; [1994] HCA 63). To similar effect it was stated in Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 at [113] (and see [1]; [117]) that "the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt" (emphasis in original). In Pell v The Queen [2020] HCA 12 at [43]-[45], the High Court confirmed that these formulations are both authoritative and consistent with each other.
2. In addressing this Ground, this Court must make its own independent assessment of the evidence. As well, it must have particular regard to the advantages enjoyed by the jury in seeing and hearing the witnesses give their evidence (M v The Queen at 493; Baden-Clay at [65]) but, as stated in M v The Queen (at 494): "If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence."
3. As noted in [2] above, various matters were agreed between the Crown and the applicant for the purposes of the trial. These included that Jorde Ewan was convicted of recklessly causing grievous bodily harm to Mr Murphy on 15 July 2017. In these circumstances the only matters that remained for the Crown to prove in its case against the applicant were assistance of Jorde Ewan by the applicant and the applicant's knowledge at the time of assistance that Jorde Ewan had committed the offence of which he was later convicted. Whether the jury's verdict was unreasonable must accordingly be considered by reference to these two elements of the offence.

Assistance by the applicant

1. The first act of assistance that the Crown relied upon was, as the trial judge described in his Summing-Up, "assisting the principal offender Jorde Ewan to leave the scene as soon as possible" (see [40] above).
2. There was evidence on the basis of which the jury could reasonably have concluded that the applicant assisted Jorde Ewan in this respect. The CCTV film in evidence showed that after Jorde ran onto Rocky Point Road and then returned into Gray Lane, he ran back to the applicant's utility, followed by the applicant (see [16] above). It was open to the jury to accept Mr Lee's evidence that this occurred at about the time that someone in Gray Lane called in a loud voice, "run Jorde run", or words to that effect. Even if that was not said by the applicant, it was open to the jury to conclude that it was said by someone in his hearing. The applicant's own evidence was in any event to similar effect. He said that Jorde came back towards him yelling, "come on, dad. Hurry up. Let's go. Quick" (see [25] above). The applicant complied with Jorde's request or instruction by running with him to the car and getting in it. It was open to the jury to conclude that the applicant's speedy response and his implicit permission to Jorde to get into the driver's seat and drive the car away with him in the passenger's seat constituted relevant assistance. In other words, it could reasonably have concluded that the applicant helped Jorde to flee the scene as soon as possible, by inference, to assist Jorde to avoid the processes of the law.
3. The applicant submitted on appeal that the Crown case was not put in this way at the trial. It was however in my view open to the jury to reason in this way when what was put to it by the trial judge in his Summing-Up, without elaboration and without objection, was the broad proposition that the applicant assisted Jorde "to leave the scene as soon as possible" (see [40] above).
4. The second act of assistance that the Crown relied upon was the fabrication by the applicant of a story that he had been assaulted by Mr Murphy on the Saturday morning. The applicant denied that he did this but it was open to the jury to conclude otherwise. In particular, the jury could have taken the view that the applicant's version of the altercation he had with Mr Murphy on the morning of 15 July was unlikely to be true as the applicant admitted that it was Mr Murphy, and not he, who called the police to attend in relation to the incident. Moreover, there was no support in the police evidence for any complaint by the applicant at that time to the police that he had been hit in the face with a frying pan by Mr Murphy.
5. If the jury reached these conclusions, it was entitled to be satisfied that the applicant's claim to the hospital on 16 July 2017 that his injuries resulted from an altercation with Mr Murphy was a lie.
6. For the jury to find that this lie by the applicant constituted assistance of Jorde Ewan to escape justice, it would have had to have found that the applicant told it for the purpose of assisting Jorde. In my view, it was open to the jury to do so as there was little, if any, other purpose that could be inferred for the lie being told. That the lie may have been misguided in the sense that it is difficult to see how it could in fact have assisted Jorde is not significant if it was in fact told for the purpose of giving him relevant assistance.
7. The third act of assistance that the Crown relied upon was the applicant's telling of lies to the police, in response to the formal demands, that he was not able to recall who was in his utility on the evening of 15 July 2017.
8. As the lies were admitted, it remained for the jury to consider whether they were told for the purpose of assisting Jorde Ewan to escape justice. Certainly, the applicant denied that he told them for that purpose (see [26] above) but it was open to the jury to reject that evidence and to infer that their purpose, or at least one of their purposes, was as alleged. That the jury might have concluded that the applicant told them for his own protection as well as Jorde's would not have precluded them constituting requisite assistance.
9. For these reasons, there was evidence from which the jury could reasonably have concluded that the applicant assisted Jorde in the relevant sense.

The applicant's knowledge

1. The Crown did not submit on appeal (or at trial) that the applicant's knowledge was enhanced in a relevant sense after the evening of 15 July 2017. In particular, it did not allege that he acquired additional knowledge before he went to the hospital on the following day or before he responded to the police demands on 22 July 2017. Accordingly, the relevant knowledge of the applicant is that which he had acquired by the time he was driven away from Gray Lane on the evening of 15 July 2017.
2. The altercation that occurred on the morning of 15 July 2017 is relevant to the question of the applicant's knowledge. On Mr Murphy's evidence, the applicant approached him in a threatening manner holding a makeshift weapon, and the applicant threatened to kill him. Mr Murphy also gave evidence that the applicant said to him then that he had sons and that he was going to get them to "fuck him up" (see [8] above). The jury was entitled to conclude from this evidence that at least after this incident the applicant bore considerable ill-will towards Mr Murphy and threatened to do him violence, either by himself or by his sons. Whilst, in his evidence, the applicant attributed responsibility for the altercation to Mr Murphy, his evidence nevertheless supported the view that, as a result of the morning incident, there was, at the least, animosity between them.
3. As to the evening incident, the applicant gave evidence that he saw Mr Murphy and said in the presence of Jorde "there's the guy that threatened - was going to burn me business down". The jury was entitled to infer from this, and the evidence of what had occurred in the morning, that the applicant believed that when Jorde suddenly set off to chase Mr Murphy he did so with a violent intent. The jury was also reasonably able to infer that when, on the applicant's evidence, Jorde came running back yelling "come on, dad. Hurry up. Let's go. Quick" (see [25] above) that the applicant knew or believed Jorde had done serious injury to Mr Murphy. The jury was thus entitled to reject the applicant's evidence that Jorde told him that Mr Murphy had simply tripped on the footpath (see [25] above).
4. The sense of urgency, indeed apparent panic, with which the applicant and Jorde acted when Jorde came running back from the corner of Rocky Point Road was also apparent from the evidence of Mr Lee, who said he heard noises in the lane which were loud enough to wake him up, including the yelling of words to the effect "he's dead, he's dead" (see [12] above). If accepted, this evidence strengthened the basis for the inferences referred to above.
5. In these circumstances, it was open to the jury to conclude that when the applicant assisted Jorde he knew (or believed, as the applicant's counsel accepted was sufficient), that Jorde had inflicted serious injury on Mr Murphy. Whether he believed that that injury had led to Mr Murphy's death is not of significance, as noted above (see [33]). As a result, it was open to the jury on the evidence before it to conclude that, when he assisted Jorde Ewan in the manner alleged, he knew or at least believed that Jorde Ewan had at least recklessly, if not intentionally, inflicted grievous bodily harm on Mr Murphy.

Conclusion on Ground 3

1. Having conducted an independent assessment of the evidence, both as to its sufficiency and its quality, I conclude for the above reasons that the jury's verdict was not unreasonable. Rather, it was a verdict at which the jury could reasonably have arrived on the evidence before it.

ORDERS

1. It follows from the applicant's success on Ground 1 that leave to appeal should be granted and that his conviction of the offence of being an accessory after the fact should be quashed. As a result of his failure on Ground 3, he would ordinarily not however be entitled to an acquittal, and a new trial would therefore be directed.
2. His counsel however submitted that this Court should exercise its discretion not to order a new trial. He relied on three matters, namely, submissions, first, that the offence was not of a high level of seriousness, secondly, that the Crown case was not strong, and thirdly, that any retrial, conviction and sentence would not make any difference to the sentence the applicant actually served because he was already subject to a sentence in respect of sequence 1 under which he was subject to a three year Community Correction Order.
3. Even if it were to be assumed that these three submissions had some force, they would not in my view be sufficient to warrant the Court taking the uncommon course pressed upon it, as distinct from leaving the question of a retrial to the prosecutorial authorities. The cases relevant to this issue were recently considered by this Court in Castagna v The Queen [2019] NSWCCA 114 at [190]-[205]. That decision indicates in my view that considerably more is required to persuade a court not to order a new trial than that which is proffered to this Court.
4. In addition to the accessory charge there were before the trial judge, pursuant to a certificate under s 166 of the Criminal Procedure Act 1986 (NSW), the following related offence charges: Sequence 1: Intimidate with intention of causing fear of physical or mental harm (s 13(1) Crimes (Domestic and Personal Violence) Act 2007 (NSW)); Sequence 3: Owner not disclose identity of driver or passenger (s 17(1) Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)); Sequence 4: Goods in personal custody suspected of being stolen (not motor vehicle) (s 527C(1)(a) Crimes Act 1900 (NSW)); Sequence 6: Armed with intent to commit an indictable offence (s 114(1)(a) Crimes Act 1900 (NSW)).
5. The applicant had been charged with the related offences by a Court Attendance Notice which was first listed before the Central Local Court on 25 July 2017. He pleaded guilty to those offences.
6. In respect of the accessory charge of which the jury found the applicant guilty and the related offences in sequences 3, 4 and 6, the trial judge imposed an aggregate sentence of imprisonment for 2 years and 6 months, to be served by way of an Intensive Correction Order to operate from 12 April 2019 to 11 October 2021. In addition to the standard conditions applicable to such an order, the trial judge imposed conditions that the applicant continue to engage in psychological treatment "by a Mental Health Plan from his General Practitioner" and engage in 250 hours of community service. His Honour identified indicative sentences of 2 years imprisonment in respect of the accessory offence and 6 months imprisonment in respect of each of the offences in sequences 3, 4 and 6. In respect of sequence 1, his Honour made a Community Corrections Order operative for 3 years from 12 April 2019 to 11 April 2022.
7. Following the hearing in this Court, the Crown, with leave granted at the hearing, lodged a written submission concerning the orders that ought to be made in the event that the Court quashed the applicant's accessory conviction and set aside the aggregate sentence imposed. The submission stated that counsel for the applicant had been consulted in relation to the submission and had indicated agreement with it.
8. In that submission, the Crown raised first the question of whether this Court would be able, if it set aside the aggregate sentence as a result of upholding Ground 1, to resentence the applicant in respect of the charges in sequences 3, 4 and 6 to which he pleaded guilty (the sequence 1 charge being the subject of a separate sentence which would not be affected by the outcome of the present appeal).
9. The Crown submitted that on one view the Court had power to deal with these related offences pursuant to s 7(1) of the Criminal Appeal Act 1912 (NSW) which is in the following terms: 7 Powers of court in special cases (1) If it appears to the court that an appellant on an appeal under section 5 (1), though not properly convicted on some count or part of the indictment, has been properly convicted on some other count or part of the indictment, the court may either affirm the sentence passed at the trial or pass such sentence whether more or less severe in substitution therefor as it thinks proper, and as may be warranted in law by the conviction on the count or part of the indictment on which it considers the appellant has been properly convicted (emphasis added).
10. This is plainly a beneficial provision designed to avoid, wherever possible, the expense and delay of remitting matters to the trial court for resentencing. It should not therefore be construed narrowly.
11. The word "indictment" is defined in s 2 of that Act to include "any information presented or filed as provided by law for the prosecution of offenders". The word "indictment" is accordingly broad enough in this context to include the present Court Attendance Notice, as it is for the purposes of the Criminal Procedure Act 1986 (NSW) (see ss 15 and 47 and cl 38 of Sch 2). As a result, s 7(1) authorises this Court to sentence the applicant in respect of the three sequences that were covered by the aggregate sentence, so long as it considers that the applicant was properly convicted. There can however be no doubt about that in the present case as the applicant pleaded guilty to the offences and there is no suggestion that those pleas were not properly made and accepted.
12. The second issue raised by the Crown was whether, if this Court made an Intensive Correction Order in respect of the sequences 3, 4 and 6 related offences, it could be backdated to 12 April 2019. That is the date on which the applicant commenced serving his sentence and the date from which the ICO (which formed part of the to-be-set aside aggregate sentence) operated.
13. Whilst ordinarily the commencement of an Intensive Correction Order cannot be backdated (see s 71(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW)), s 7(1) of the Criminal Appeal Act however permits "substitution" by this Court of a sentence in place of one which is imposed in part by reason of a conviction that was not properly made (see [87] above). As held in Blanch v R [2019] NSWCCA 304 at [92]-[94] in respect of s 6(3) of the Criminal Appeal Act, which is for present purposes analogous to s 7(1), an Intensive Correction Order may effectively be backdated when such a power is exercised.
14. As evidenced by the post-hearing written submission to which I have referred, the parties were agreed that if this Court were to resentence the applicant in respect of sequences 3, 4 and 6, rather than remitting the matter to the trial court, an aggregate sentence of 6 months imprisonment should be imposed, to be served by way of an Intensive Correction Order commencing on 12 April 2019 and expiring on 11 October 2019. This is an appropriate sentence for those offences. The order should be subject only to the standard conditions as the period for its operation has expired. This constitutes "exceptional circumstances" for the purposes of s 73A(1A) of the Crimes (Sentencing Procedure) Act and permits this course to be taken. Indicative sentences of 6 months imprisonment should be specified in respect of each of the three offences.
15. For these reasons, I propose the following orders: 1. Grant leave to appeal. 2. Allow the appeal. 3. Quash the applicant's conviction on the accessory after the fact charge and order a new trial. 4. Quash the aggregate sentence imposed in the District Court on 12 April 2019 in respect of the charge of accessory after the fact and the offences charged in sequences 3, 4 and 6. 5. In respect of his convictions on the offences charged in sequences 3, 4 and 6, and in substitution for the sentence for those offences referred to in Order (4) above, sentence Stephen Geoffrey Ewan to an aggregate period of imprisonment of 6 months to be served by way of an Intensive Correction Order commencing on 12 April 2019 and expiring on 11 October 2019. 6. Specify 6 months imprisonment as the indicative sentence in respect of each of these offences. 7. The Intensive Correction Order referred to in Order 5 above is subject to the following conditions: 1. The offender must not commit any offence. 2. The offender must submit to supervision by a Community Corrections Officer. 1. Note that the sentence imposed on the applicant on 12 April 2019 in respect of the offence charged in sequence 1 is unaffected by these orders. 2. List the matter for mention in the District Court at Sydney at 9:30am on 22 May 2020.
16. R A HULME J: I agree with Macfarlan JA.
17. BUTTON J: I agree with Macfarlan JA.
18. I have nothing to add to what his Honour has written with regard to ground 1, ground 3, and the appropriate orders.
19. As for ground 2, senior counsel for the applicant was correct to submit that it is unusual for an alleged lie to be relied upon by the prosecution both as an element of an offence (in this case, being an accessory after an offence, and seeking to protect another person), and as an act said to show consciousness of guilt on the part of the accused himself or herself. But as Macfarlan JA has written at [51], people can do the one thing for two (or more) reasons.
20. Senior counsel was also correct to submit that it is unorthodox for an "Edwards direction" to be given in the summing-up when, in final address, the Crown prosecutor has not ultimately submitted that the jury should reason that the alleged lie (or other act relied upon) demonstrates consciousness of guilt. But it was defence counsel who had requested that the direction be given at an earlier stage of the trial; who submitted in final address that the asserted lies were not told for that reason; and who was content with the summing-up as given. In those circumstances, ground 2 should not be upheld.

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