KRISHNA v DIRECTOR OF PUBLIC PROSECUTIONS

CRIMINAL APPEAL - conviction appeal - leave required where grounds not limited to questions of law CATCHWORDS: CRIMINAL APPEAL - whether failure to call witness constituted a miscarriage of justice - failure by prosecution to produce weapon - whether issue in prosecution case unsupported by evidence SENTENCE - whether offence fell within mid-range of objective seriousness

Crimes Act 1900 (NSW), s 98 LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 (NSW), s 44, Part 4, Div 1A Criminal Appeal Act 1912 (NSW), ss 5, 6 Evidence Act 1995 (NSW), s 65

Attorney General for the State of NSW v X (2000) 49 NSWLR 653 Australian Gas Light Company v Valuer-General (1940) 40 SR (NSW) 126 Collector of Customs v Agfa-Gaevert (1996) 186 CLR 389 Haider v JP Morgan [2007] NSWCA 158 Hutchinson v RTA [2000] NSWCA 332 CASES CITED: M v The Queen (1994) 181 CLR 487 Morris v The Queen (1987) 163 CLR 454 Mulato v Regina [2006] NSWCCA 282 Ormwave Pty Limited v Smith [2007] NSWCA 210 R v R (1989) 18 NSWLR 74 Richardson v The Queen (1974) 131 CLR 116 Williams v The Queen (1986) 161 CLR 278

PARTIES: Rakesh Krishna - Applicant Director of Public Prosecutions (NSW) - Respondent

COUNSEL: P. Naughtin - Applicant N. Adams - Respondent

SOLICITORS: Harish Prassad & Associates - Applicant S. Kavanagh, Solicitor for Public Prosecutions - Respondent

IN THE COURT OF CRIMINAL APPEAL CCA 2007/3265 DC 06/21/3034

BASTEN JA LATHAM J ROTHMAN J

23 November 2007 Rakesh KRISHNA v DIRECTOR OF PUBLIC PROSECUTIONS (NSW)

Headnote Mr Krishna was convicted together with a co-accused, Mr Azar, of robbery with wounding. Mr Krishna was sentenced to a period of 9 years 4 months imprisonment, being a non-parole period of 7 years with a balance of 2 years 4 months.

The Court held, dismissing the appeal against conviction, granting leave to appeal against sentence and dismissing the appeal against sentence:

1. A convicted person has a right of appeal on a ground which involves a question of law. Otherwise leave is required in relation to both a conviction appeal and a sentence appeal. Whether Mr Krishna in fact raised a question of law may be doubted: [2]. Williams v The Queen (1986) 161 CLR 278; Morris v The Queen (1987) 163 CLR 454; M v The Queen (1994) 181 CLR 487; R v R (1989) 18 NSWLR 74 referred to.

2. There is no authority for the proposition that a failure to call an eyewitness who was unavailable would constitute a miscarriage of justice: [15]. Richardson v The Queen (1974) 131 CLR 116 referred to.
3. The fact that no weapon was produced by the prosecution at trial is a matter which the accused can draw to the attention of the jury: it carried no weight as a basis of challenge to the verdict: [17].

4. The suggestion that the verdict was unreasonable or unsupported by the evidence should be rejected. It depended on inconsistencies which were for the jury to assess: [33].

5. There was no error in her Honour's assessment of the seriousness of the offence. Accordingly the standard non-parole period was applicable: [37]. Leave to appeal against sentence should be granted but the appeal against sentence dismissed: [39].

6. The right of appeal against conviction on "any ground which involves a question of law alone" excludes errors of law made in the context of a decision of mixed law and fact or an exercise of discretion: [46]. An appeal on the basis of an unreasonable verdict is a question of fact and not a question of law alone: [50]. Williams v The Queen (1986) 161 CLR 278, Morris v The Queen (1987) 163 CLR 454; M v The Queen (1994) 181 CLR 487; Australian Gas Light Company v Valuer-General (1940) 40 SR (NSW) 126; R v R (1989) 18 NSWLR 74 considered.

Collector of Customs v Agfa-Gaevert (1996) 186 CLR 389; Haider v JP Morgan [2007] NSWCA 158; Ormwave Pty Limited v Smith [2007] NSWCA 210 referred to.

7. Where it is alleged that there is no evidence of an element of an offence, that is a question of law alone and does not require leave to appeal. Where there is some evidence of the element, but the evidence is unbelievable, improbable, against the weight of the totality of evidence or so slender as not to satisfy the criminal onus, the question is of fact or at least mixed fact and law: [51].

IN THE COURT OF CRIMINAL APPEAL CCA 2007/3265 DC 06/21/3034

BASTEN JA LATHAM J ROTHMAN J

23 November 2007 Rakesh KRISHNA v DIRECTOR OF PUBLIC PROSECUTIONS (NSW) Judgment 1 BASTEN JA: On 15 May 2006 Mr Krishna was put on trial with a co-accused, Mohammed Azar, on a charge of robbing one Vijay Sharma of a sum of money whilst armed with a knife and in company. The more serious of the two charges further alleged that at the time of the robbery the accused wounded Mr Sharma. The alternative charge involved robbery, but not wounding. Both accused were convicted by a jury of the more serious charge. Mr Krishna was sentenced to a period of 9 years 4 months imprisonment, being a non-parole period of 7 years, with a balance of 2 years 4 months, commencing on 18 September 2006. He seeks to appeal against both his conviction and sentence. Conviction appeal 2 A convicted person has a right of appeal on a ground which involves a question of law: Criminal Appeal Act 1912 (NSW), s 5(1)(a). Otherwise leave is required in relation to both a conviction appeal and a sentence appeal. (I gratefully adopt the references by Rothman J to Williams v The Queen (1986) 161 CLR 278, M v The Queen (1994) 181 CLR 487, Morris v The Queen (1987) 163 CLR 454 and R v R (1989) 18 NSWLR 74.) Whether Mr Krishna in fact raised a question of law may be doubted, but as no issue was taken on behalf of the Director in this regard, it may be assumed for present purposes that he had an appeal as of right and will be referred to hereafter as the Appellant. 3 The notice of appeal filed on 26 February 2007 was accompanied by grounds of appeal which, in relation to conviction, did little more than assert that the verdict was unreasonable, or could not be supported having regard to the evidence, in terms which reflected s 6(1) of the Criminal Appeal Act. Of the 11 grounds, 10 involved semantic variations on that theme. The eleventh ground was that one Arishma Devi "should have been presented as a witness in the trial, and that her absence as a witness represented a miscarriage of justice itself". 4 In order to assess the challenges to the jury's verdict, it is necessary to identify briefly the circumstances of the offence. It is not in doubt that in the mid-afternoon of Sunday, 12 June 2005, Mr Sharma went to meet Ms Devi in a room of the Liverpool City Motel. Nor was it in dispute that at some stage on that afternoon there were present in the room at the motel, Mr Sharma, Ms Devi, the Appellant, Mr Azar and another man, Ronald Singh. The room had been "rented" by the Appellant. It is also not in dispute that either whilst in the room, or in attempting to leave through a window, Mr Sharma received wounds to his scalp and left forearm. The prosecution case was that Mr Sharma was lured to the room by Ms Devi, where the Appellant and Mr Azar demanded money from him, the Appellant striking him on the head with the blunt side of a large knife or meat cleaver when he refused. Mr Sharma then sought to escape through the window and cut his left forearm in breaking the glass. 5 The case for the Appellant was that he and Mr Azar entered the motel room after Mr Sharma, finding him in a compromising position with Ms Devi, on the bed. Mr Sharma then attempted to leave the room through the window, cutting both his scalp and his forearm. 6 The defence case was to some extent confused by evidence that people in the room had been shouting "rape", thereby suggesting not merely that Mr Sharma might have been 'sprung' with the Appellant's girlfriend, but that he had been seeking non-consensual sex. This picture was, however, potentially discounted by evidence that Ms Devi had been seen smiling and apparently unperturbed, shortly after the incident. 7 Some further confusion was created by the evidence by Mr Ronald Singh, whose story was not entirely consistent either with Mr Sharma or with that given by the Appellant in his record of interview with the police. (The Appellant did not give evidence at trial.) 8 The trial ran before Sweeney DCJ over a period of 8 days and, with the exception of the complaint concerning the absence of Ms Devi, there is no complaint made as to any aspect of the way in which her Honour ran the trial, nor any complaint in relation to her summing-up. On one view, there was a purely factual dispute which it was for the jury to resolve. There was undoubtedly evidence which conflicted with that of Mr Sharma but, if the jury accepted Mr Sharma as a witness of truth and no sufficient doubt was raised by other contradictory evidence, it is difficult to understand why they were not entitled to convict, as they did. 9 The written submissions filed by counsel for the Appellant did little more than repeat the arguments made to the jury as to why Mr Sharma should not have been accepted as a witness of truth. Reference was made to the conflicting evidence (though not to the fact that it was internally conflicting) and to the fact that the weapon allegedly used against Mr Sharma had not been found. This was said to be a significant weakness in the prosecution case. 10 It is convenient to deal first with the circumstances with respect to Ms Devi. Failure to call witness 11 On the first day of the trial, 15 May 2006, before the jury was empanelled, the prosecution outlined the case to the trial judge noting that attempts to locate Ms Devi the week before the trial, in order to require her attendance as a witness, had been unsuccessful. He noted that the prosecution had an application, which was opposed, to tender a record of interview conducted with Ms Devi on 16 June 2005, being the day after the offence. 12 Pleas having been taken from both accused, a voir dire was conducted in the absence of the jury in the course of which Detective Sergeant David Brown, the principal investigating officer, gave evidence as to the statement taken from Ms Devi and attempts to locate her. By that stage, Ms Devi had told two stories. The first, on the day following the incident, was the interview with the police, in which she confirmed significant aspects (though by no means all) of Mr Sharma's account of the incident. However, she also gave evidence at a bail application made by the Appellant in the Supreme Court, in the course of which she reneged on the evidence damaging to the Appellant in the record of interview. On the voir dire, the cross-examination by counsel for the appellant related almost entirely to the circumstances in which the initial interview was conducted, with the suggestion that pressure had been placed on Ms Devi at the police station. 13 Counsel for the Appellant opposed the admission of the written transcript of the interview and the evidence in the Supreme Court, pursuant to s 65 of the Evidence Act 1995 (NSW). 14 In her judgment on the question of admissibility, her Honour rejected the evidence on the basis that s 65(2) was not satisfied. However, at the commencement of her judgment she stated, in a passage which has not been challenged on appeal: "It is agreed between the parties that Miss Devi is unavailable. Evidence has been given by Detective Brown as to the attempts he made to locate Miss Devi, unsuccessfully, and there has been no issue taken that Miss Devi is unavailable as defined in the Evidence Act ." 15 The proposition that a criminal trial will miscarry because a particular eye witness is not called at the trial, where she was unavailable to be called, defies commonsense. The implausibility of the contention increases when one notes that the witness had already contradicted herself once. Even if she had been available, it was by no means clear that the prosecution was bound to call her, there being a real issue as to whether her evidence would be credible and truthful and as to whether she was indeed a witness who was essential to the unfolding of the prosecution case: c.f. Richardson v The Queen (1974) 131 CLR 116 at 119 (Barwick CJ, McTiernan and Mason JJ). No authority was relied upon to support the claim that the failure to call Ms Devi involved a miscarriage of justice, either as a matter of principle, or in circumstances similar to those in the present case. The ground is without merit. No weapon produced 16 The next complaint was that no weapon was produced by the prosecution. That was because they did not have the weapon. However, after Mr Sharma had left the motel, the assistant manager, Mr Pasefika, had returned to the room and told the men to pack up and leave. He said that he returned five minutes later to tell them again to leave and shortly thereafter they did. The Appellant told police in a recorded interview that he had packed his things and left after the incident. Thereafter Ms Rebecca Tarleton cleaned the room; she gave evidence that she did not see a knife or meat cleaver. The room was not locked until about 4pm and police did not arrive until 5pm. 17 It was open to the jury to infer that if there were a knife, it would have been taken by the Appellant or one of his friends, so that its absence was a neutral factor. In any event, it was open to the Appellant to make such submissions as he wished to the jury in that respect although it appears to have received somewhat more muted reference in the address than it received on the appeal: see e.g. Tcpt, 23/05/06, p 55(15). This matter carries no weight as a basis of challenge to the verdict. Prosecution case unsupported by evidence 18 So far as the descriptive evidence of the witnesses was concerned, it is convenient to start with that of Mr Sharma. He said that he received a text message from Ms Devi on Sunday 12 June and called her on her mobile. They arranged to meet in room 37 at the Liverpool City Motel for drinks. He said that when he arrived there was a man sitting on a chair at the table with a knife like a meat cleaver in his hand. He said that two or three minutes later two other men came out of the bathroom. He was told to pour drinks and Azar demanded his wallet. He did not hand over his wallet and said that the third male in the room, presumably Mr Ronald Singh, was in effect pleading to be allowed to leave and told Mr Sharma that he had been robbed and that he (Sharma) should hand over everything. Ms Devi also said that he should give them the wallet. 19 Mr Azar then took hold of Mr Sharma's collar and pushed him to the wall whilst holding the knife against his neck. The Appellant then took the knife and struck him with the blunt edge on the forehead. His head was bleeding as a result of the blow. At that point Mr Sharma said that he took out his wallet and gave the visible cash, $40, to Mr Azar. He then tried to leave by the door, but found it locked. He turned to the window, hit it twice, breaking it with the second blow, and in doing so cut his forearm. He decided that he would injure himself further if he tried to get out that way and on turning back noticed that the door was open. He then ran out of the room, down the stairs and out to his car. 20 Mr Sharma said that Mr Pasefika, the assistant manager of the motel, then approached the car with a sort of machete and struck the car, causing it damage. He drove to the hospital. 21 Mr Ronald Singh gave evidence that he had seen the Appellant outside the motel and said that he needed to use a toilet. The Appellant had told him he could use the bathroom in his room in the motel and Mr Singh went up to the room. He said that Mr Sharma and Ms Devi were sitting on the bed when he entered. He went into the toilet and was there for about five minutes. When he came out he said that the men were all standing, the door was open and the Appellant and a friend were standing between Mr Sharma and the door when Mr Sharma hit the window and broke the glass. He saw Mr Sharma run out of the door and down to his car and heard cries of "rape, rape". 22 The Appellant's account, given in his interview to police, was that he and a friend identified as "Issa" or "Izaac" (understood to be the co-accused Azar) were talking in front of the motel when Ronald Singh arrived. Singh did not go up in front of them, but rather followed them. He said that Ms Devi was staying for a few nights in his room in the motel. He said that when they walked into the room, to his surprise he had seen Ms Devi and a "boy" on the bed. The boy, being Mr Sharma, was clothed, but Ms Devi had her top off. The Appellant said they were sitting on a corner of the bed and both he and Ms Devi looked surprised; it appeared that Mr Sharma panicked and "he's got up, tried to push us away and then the next thing you know, he's gone straight through the window". Nothing was apparently said at that stage, but the Appellant asserted that he and Mr Azar had "pulled him back in through the window". He denied that any person had a knife or meat cleaver. 23 That account was inconsistent in significant respects with the story given by Mr Sharma and also with that given by Mr Singh. 24 A further story with additional inconsistencies was given by Rebecca Tarleton, who was working at the motel that day and was described in the evidence as the "manager". She said that at about 3.30pm, while taking out the rubbish, she heard yelling and screaming and the words "rape". She looked up in time to see a window smash and a man's torso come part of the way through the window. She saw the man pulled back into the room and said he had blood running down his head. She was joined by Mr Pasefika and almost immediately, both went upstairs. She said that the door was closed when she went upstairs but it was not locked and was opened by Mr Pasefika. She saw three men in the room, with a naked girl and turned around immediately and went back downstairs. She said that they were "all yelling at each other". The three males, other than the injured man, "were all throwing words like he raped the female that was naked in the room and just lots of things were getting chucked around": Tcpt, 18/05/06, pp 13-14. 25 This evidence was inconsistent with much of that given by Mr Sharma, with the interview given by the Appellant and the evidence of Mr Singh. 26 Mr Pasefika gave evidence of hearing a bang, seeing a man "hanging out of a window" (Tcpt, 19/05/06, p 13) and hearing words including "rape". He said he was angry at that and went to get an axe (Tcpt, p 14). He was asked: "Q. Why did you get an axe?' A. I just going to rape the guy that raped the girl." 27 He then went upstairs and looked inside the room where he said "There was a naked girl standing there, three guys surrounded": Tcpt, p 16. He was further asked (p 18): "Q. Was she distressed, happy, sad, something in the middle? A. Just smiled at me. … Q. … Did she gesture or do anything else when she smiled at you? A. No, I just told her to f off, get out of here, you're nothing but a this, this, that you know. Every name of the book I told her. Q. You abused her? A. Yes." 28 He denied that Ms Tarleton had accompanied him up to the room or seen the naked girl: Tcpt, p 19. 29 What the jury made of Mr Pasefika's evidence is a matter of speculation. One moment he attacked with a tomahawk the car of a man he believed to have committed or attempted rape, and a matter of seconds later he said he abused the young woman. Perhaps it was clear to him that she had not been raped at all. He gave evidence that he did not consider calling the police: Tcpt, p 23. 30 There was evidence from the investigating officer, Detective Brown, to the effect that there was blood on the broken glass, but on the lower section and not the upper section, which was consistent with Mr Sharma breaking the glass with his hand or arm and cutting his forearm. There was also evidence from a Dr Bui who treated Mr Sharma at the hospital and who was of the opinion that the cut on the arm was caused by broken glass but that the cut on Mr Sharma's head was not. In cross-examination, he conceded that there might be room for other explanations, but it was clearly open to the jury to accept his evidence as supportive of the account given by Mr Sharma as to how he came by his wounds. 31 It is unlikely that the jury would have treated Mr Sharma's attempt to get out of the window as anything but the product of fear and panic. If there had been a demand for his wallet and he had been threatened with a meat cleaver, that would provide a satisfactory explanation of his action. If he had been caught in the act of raping or attempting to rape Ms Devi, that might also have provided a plausible explanation. However, that was not the account given by the Appellant or Mr Singh and, to the extent that the evidence of Ms Tarleton and Mr Pasefika supported it, it was clearly not accompanied by distress on the part of the Ms Devi. The cries of "rape", if they happened, might have been viewed as an attempt at distraction when it was realised that Mr Sharma's conduct had attracted attention. 32 There remained the possibility, which formed the basis of the Appellant's account to the police, that he and Mr Azar had simply entered the room in an unthreatening manner and surprised Ms Devi and Mr Sharma sitting on the bed. It is possible that the jury might have accepted that Mr Sharma would panic and attempt to jump out of the window in that circumstance, but that would presumably have also required the jury to reject Mr Singh's evidence that he had already entered without causing alarm and was in the bathroom at the time. The jury must in fact have rejected the Appellant's explanation and it is difficult to see why they should not have done so. 33 Further reference to the detail of the evidence would not give rise to a clearer picture of what happened at the trial. If Mr Sharma were believed at the requisite level of satisfaction, the Appellant must have been convicted. There was such a level of conflict and inherent implausibility in the evidence of the other witnesses that its rejection was hardly surprising. Such objective evidence as there was, in terms of the blood found on the broken window and the medical evidence as to the most likely cause of the wounds to the head and arm supported Mr Sharma. There is no basis for concluding that the verdict was unreasonable or unsupported by the evidence. The appeal against conviction must be dismissed. Sentence 34 All that was said on the application for leave to appeal against sentence was that the robbery did not fall within the mid-range for an offence under s 98 of the Crimes Act 1900 (NSW) and accordingly did not require the imposition of a standard non-parole period of 7 years, as prescribed by Part 4, Division 1A of the Crimes (Sentencing Procedure) Act 1999 (NSW). 35 Her Honour found that the offence was "a matter which does fall within the mid-range, albeit at the lower end of the mid-range" of objective seriousness for an offence under that provision: Judgment on sentence, 2 August 2006, p 21. The elements of the offence have been described above. On Mr Sharma's account, which was accepted by the jury, he was lured by a young woman into a motel room and confronted by a man with a meat cleaver, being the co-accused, who was joined by the Appellant and a third man, Mr Ronald Singh. On the account given by Mr Sharma, Mr Singh was acting a role as another victim, in an attempt to persuade Mr Sharma to hand over his money. As her Honour recounted in the reasons for sentence, of 2 August 2006, p 3: "Mr Sharma did not hand over his wallet at that stage. He said Mr Azar came close to him and held him by the shirt and pushed him up against the wall with the knife in Mr Azar's hand against Mr Sharma's neck. Again Mr Azar demanded Mr Sharma's wallet. Mr Krishna then took the knife or meat chopping implement from Mr Azar. Mr Azar held Mr Sharma with his arms restrained by his side. Mr Krishna turned the knife around and struck Mr Sharma to the head once with the blunt side of the blade. Mr Sharma then took $40 from his wallet and handed it to Mr Azar. Mr Sharma's head was cut from being struck with the blade." 36 Her Honour further stated (p 4): "Obviously the weapon was used as part of the robbery but I cannot say that the wounding, as distinct from the threat of violence with the chopping implement as an element of the robbery, was pre-planned rather than a spontaneous act in the course of the robbery." Her Honour continued: "There was evidence from a Dr Bui in the trial that the cut on Mr Sharma's head was a five centimetre cut which required four stitches. In an attempt to escape from the room immediately after the robbery and wounding, Mr Sharma put his arm through a window of the room and suffered a deep cut to his left forearm. This was not relied upon by the Crown as the wounding; I mention it only to complete the factual circumstances and to demonstrate the fearful state in which Mr Sharma was as result of the robbery and wounding." 37 No doubt robbery with wounding in company will usually constitute a serious offence. No doubt the offence would have been more serious if it had extended over a longer period, involved a more serious degree of bodily harm or resulted in a greater loss of property. Nevertheless, it was not a minor assault, nor was the robbery itself unplanned. There was no error in her Honour's assessment of the seriousness of the offence. Accordingly the standard non-parole period was applicable. 38 Her Honour was not satisfied that there were special circumstances for the purposes of s 44(2) of the Sentencing Procedure Act, a conclusion which was not challenged. Accordingly the additional period of 2 years and 4 months followed as a matter of course. 39 There are constraints on the ability of this Court to intervene in the assessment of the objective seriousness of an offence: see Mulato v Regina [2006] NSWCCA 282 at [37] (Spigelman CJ) and [46]-[48] (Simpson J). Nevertheless, because of the care which needs to be taken in affirming the imposition of a standard non-parole period, it is appropriate to grant leave to appeal against the sentence, but the appeal must be dismissed. 40 Accordingly I propose the following orders:

(1) Grant leave to appeal against sentence, and, if necessary, against conviction.

(3) Dismiss the appeal against sentence. 41 LATHAM J: I agree with Basten JA. 42 ROTHMAN J: I have had the advantage of reading in draft the reasons of Basten JA. I agree with his Honour's conclusions and with his Honour's reasons. I wish to express my own view as to the necessity for leave in relation to the conviction appeal. 43 A survey of past conviction appeals, successful and unsuccessful, discloses that no conviction appeal has been granted leave and leave has not ever been requested. It seems that it has been assumed by all that conviction appeals are "as of right". 44 The provisions of Criminal Appeal Act 1912 (NSW) (the Act) confine the right of appeal against conviction to an appeal on "any ground which involves a question of law alone": section 5(1)(a) of the Act. Otherwise, leave is required. Further, section 5(1)(b) of the Act makes clear that such a "question alone" does not include a question of fact or a question of mixed law and fact. In so doing, section 5(1)(b) of the Act confirms authority on the ordinary construction of the phrase. 45 In Williams v The Queen (1986) 161 CLR 278, the High Court discussed the meaning of this expression in the context of a provision in Tasmanian legislation (Criminal Code 1924 (Tas)) allowing the Attorney-General to seek leave to appeal an acquittal, which leave was granted by the Court of Criminal Appeal. The High Court said: "In Reg v Jenkins , Crisp J correctly pointed out that a 'question of law alone' does not include a question of mixed fact and law and went on to say that 'there would seem to be great difficulties in the way of entertaining an appeal by the Crown against the exercise of a judicial discretion where the question involved is not so much the existence of a discretion but the question of its exercise in relation to the facts of a particular case'." (Per Gibbs CJ at 287 with whom Wilson and Dawson JJ agreed on this point)

In the same judgment, Mason and Brennan JJ said: "An appeal lies on 'a question of law alone'. An appeal does not lie on a ground which involves a mixed question of fact and law: that is a ground available to a person convicted of an offence (s 401(1)(b)(ii)) but not to the Attorney-General. An appeal on the ground of the wrongful rejection of evidence by a trial judge in the exercise of a discretion is not an appeal on a question of law alone. The manner in which a discretion is exercised depends upon the judge's appreciation of all the facts of the case, so that an error of law which leads the judge wrongly to hold that he has a discretion is not the only factor which contributes to his decision to reject the evidence." ( Williams , supra, at 301-302) 46 A question of law, as a term, is wider than the term "a decision on a question of law" (see, for example, Hutchinson v RTA [2000] NSWCA 332 at [33]) and wider than the term "error of law" (see, for example, Attorney General for the State of NSW v X (2000) 49 NSWLR 653 at [124]) and would, therefore, allow greater scope for an appeal "as of right". However, the use of the word "alone" in section 5(1)(a) of the Act confines the broader expression considerably and excludes errors of law made in the context of a decision of mixed law and fact or an exercise of discretion. 47 It may be that the practice of not seeking leave has emerged from the older restrictions on the nature of an appeal from a jury verdict. However, there can be no doubt that, at least since the judgment of the High Court in M v The Queen (1994) 181 CLR 487, an appeal on the basis, truly expressed, of an unreasonable verdict is a question of fact. In M v The Queen, supra, the High Court said: "Where a court of criminal appeal sets aside a verdict on the ground that it is unreasonable or cannot be supported having regard to the evidence, it frequently does so expressing its conclusion in terms of a verdict which is unsafe or unsatisfactory. Other terms may be used such as 'unjust or unsafe', or 'dangerous or unsafe'. In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence …" (Per Mason CJ, Deane, Dawson and Toohey JJ at 492) (emphasis added) 48 Even prior to M v The Queen, supra, an appeal on such a ground would not have raised "a question of law alone". In Morris v The Queen (1987) 163 CLR 454, Mason CJ referred to the function of an appellate court in making an independent assessment of the evidence for the purpose of deciding whether a jury should have entertained a reasonable doubt. Describing the nature of this inquiry, his Honour said at 462: "In performing the function which is discussed in the passage just quoted the Court of Criminal Appeal is deciding a question of fact. So much clearly appears from the judgment of the Court (Dixon CJ, Fullagar and Taylor JJ.) in Raspor v The Queen (1968) 99 CLR 346 at 350 and Hocking v Bell (1945) 71 CLR 430 at 497. When 'the court performs this duty, it is not deciding a question of law; it is supervising or reviewing the findings of a tribunal of fact ', to use the words of Dixon J in Darling Island Stevedoring & Lighterage Co Ltd v Jacobsen (1945) 70 CLR 635 at 643." (emphasis added) 49 This Court has held similarly, albeit in a different context. In R v R (1989) 18 NSWLR 74 the Court was required to answer a question on a stated case relating to the capacity of a trial judge to direct an acquittal where the judge considered it would be "unsafe and unsatisfactory" for the jury to convict. Relying on Morris, supra, and other authorities, the Court said:

"… [O]ne major difference between the task of a Court of Criminal Appeal in considering whether a jury's verdict is unsafe or unsatisfactory and that of the same court, or a trial judge, in considering in point of law whether there is sufficient evidence to sustain a conviction, is that in the former case regard is to be had to the totality of the evidence." (Per Gleeson CJ, Maxwell and Wood JJ agreeing) 50 While there are many judgments that delineate between questions of fact and questions of law, the analysis usually commences with that adumbrated by Sir Frederick Jordan CJ in Australian Gas Light Company v Valuer-General (1940) 40 SR (NSW) 126. At page 82, Jordan CJ said: "Before proceeding to the questions which have been submitted, it is necessary to keep in mind that this Court has jurisdiction to determine only question of law and only such questions of law as are submitted to it. In cases in which an appellate tribunal has jurisdiction to determine only questions of law, the following rules appear to be established by the authorities: (1) The question what is the meaning of an ordinary English word or phrase as used in the Statute is one of fact not of law. This question is to be resolved by the relevant tribunal itself, by considering the word in its context with the assistance of dictionaries and other books, and not by expert evidence; although evidence is receivable as to the meaning of technical terms; and the meaning of a technical legal term is a question of law. (2) The question whether a particular set of facts comes within the description of such a word or phrase [ie, an ordinary English word or phrase] is one of fact. (3) A finding of fact by a tribunal of fact cannot be disturbed if the facts inferred by the tribunal, upon which the finding is based, are capable of supporting its finding, and there is evidence capable of supporting its inferences. (4) Such a finding can be disturbed only (a) if there is no evidence to support its inferences, or (b) if the facts inferred by it and supported by evidence are incapable of justifying the finding of fact based upon those inferences, or (c) if it has misdirected itself in law. Thus, if the facts inferred by the tribunal from the evidence before it are necessarily within the description of a word or phrase in a statute or necessarily outside that description, a contrary decision is wrong in law. If, however, the facts so inferred are capable of being regarded as either within or without the description, according to the relative significance attached to them, a decision either way by a tribunal of fact cannot be disturbed by a superior Court which can determine only questions of law." (Citations omitted.) The above quote discloses that even on the older and long standing view of the distinction between fact and law, an appeal on the ground of the unreasonableness of a jury verdict would not be an appeal on "a question of law alone". More recent judgments make that clearer: see below and see for example Ormwave Pty Limited v Smith [2007] NSWCA 210 at [12] and following and the cases cited therein; Haider v JP Morgan [2007] NSWCA 158; and see Collector of Customs v Agfa-Gaevert (1996) 186 CLR 389 at 395 et seq. 51 The difficulty for practitioners and the Court is that where it is alleged that there is no evidence of an element of an offence, that is a question of law alone and does not require leave to appeal. Where, however, there is some evidence of the element, but the evidence is unbelievable, improbable, against the weight of the totality of evidence or so slender as not to satisfy the criminal onus, the question is of fact (or at least mixed fact and law). 52 As it was stated in R v R, supra: "The distinction between the existence of evidence and the sufficiency or reliability of that evidence provides convenient categories for most purposes of analysis, but in truth that distinction is not absolutely rigorous. This does not invalidate the distinction. It simply means that it is to be applied with due regard to its limitations; what is involved is a matter of judgment rather than calculation. That, I consider, is what the Court of Appeal in England had in mind in R v Galbraith when reference was made to 'borderline cases' which can 'safely be left to the discretion of the judge'. The word 'discretion' was not being used in its widest sense." (Per Gleeson CJ at 84, Maxwell and Wood JJ agreeing) 53 It is unlikely that any conviction appeal would be denied leave. Such an appeal raises an issue relating to whether a restriction of liberty is imposed in accordance with law. The practice of the Court in the past reflects common sense and attention to substance, rather than form. Perhaps the legislation should be clarified to reflect the practice that appeals against conviction are treated "as of right". Until then, practitioners need to ensure that leave is sought on all but appeals on issues of law alone. 54 I agree with the orders proposed by Basten JA and I express the view that leave, in this case, is necessary and appropriate. **********

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