Regina v Kemsley [2003] NSWCCA 221

New South Wales Court of Criminal Appeal

CITATION : Regina v Kemsley [2003] NSWCCA 221 HEARING DATE(S) : 8 August 2003 JUDGMENT DATE : 8 August 2003

JUDGMENT OF : Wood CJ at CL at 1, 50, 52; Simpson J at 2; Adams J at 51 DECISION : (i) appeal against conviction dismissed; (ii) leave to appeal against sentence granted, appeal dismissed

CATCHWORDS : appeal against conviction - application to appeal against severity of sentence - aggravated robbery - evidence adduced from witness Crimes Act 1900, s95(1) LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999, s44(2) Criminal Appeal Act 1912, s6 Evidence Act 1995, Part 3, ss135 & 137 CASES CITED : R v Birks (1990) 19 NSWLR 677 PARTIES : Crown - Respondent Jason Anthony Kemsley - Appellant FILE NUMBER(S) : CCA 60180/03 COUNSEL : D Frearson - Crown P Byrne SC - Appellant SOLICITORS : SE O'Connor - Crown C Bilinsky - Appellant

LOWER COURT District Court JURISDICTION : LOWER COURT 02/31/2056 FILE NUMBER(S) : LOWER COURT Cooper DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60180/03

WOOD CJ at CL SIMPSON J ADAMS J

Friday 8 August 2003 REGINA v Jason Anthony KEMSLEY Judgment 1 WOOD CJ AT CL: I will ask Simpson J to give the first judgment. 2 SIMPSON J: This is an appeal against the conviction of the appellant by a jury on 19 March 2003 of a charge of aggravated robbery. The circumstance of aggravation alleged, and found by the jury to be proved, was the use of corporal violence. The appellant also seeks leave to appeal against the severity of the sentence of imprisonment for two years with a non-parole period of twelve months subsequently imposed upon him.

the Crown case 3 The events giving rise to the charge occurred in the early hours of 19 January 2002 at Gosford. The Crown case was that the appellant, having returned from twelve months overseas, found that his girlfriend (with whom he had resumed his relationship on his return) had, during his absence, had a relationship with an Andrew Spence, the complainant. Between 1.00 a.m. and 2.00 a.m. on 19 January (a Saturday) the appellant and friend, Adam Davis, encountered a group of young men and women outside a pizza restaurant in Gosford. The appellant realised that the person who had been involved with his girlfriend was among the group, but not knowing which of the men he was, demanded to know who (or where) Andrew Spence was. Spence identified himself, whereupon the appellant punched him in the mouth with a closed right fist. Spence fell back against a car, and then slid to the ground. The appellant punched him in the back of the head, grabbed him in a headlock, and strangled him around the neck. He asked Spence for money. Spence said he had none. The appellant asked Spence for his wallet. Spence said he did not have one. Spence was still on the ground, curled up in a ball. The appellant kicked him in the back, then tore a silver necklace from around his neck and pulled an earring from his left ear. This, once accepted by the jury, constituted the offence charged. According to evidence in the Crown case, the removal of the earring caused bleeding from Spence's left ear. 4 The appellant's companion, Davis, then grabbed Spence and threw him against a wall, telling him not to move. The appellant walked towards the two, shouting: "I'm gonna slit his throat." 5 Spence struggled free and took shelter in the pizza shop.

evidence 6 Evidence in the Crown case was given by Spence, and by six others, in whose company he had been preceding the offence. The Crown also adduced medical evidence, in the form of two reports, although these were both derived from the notes of the same examination, which had taken place later in the morning of the incident when Spence attended the Gosford Hospital. Before doing so, Spence had reported the incident to Gosford police, and the police officer, Constable Andrew Patterson, also gave evidence. As well, he produced three polaroid photographs he had taken of Spence. 7 One of the Crown witnesses was Derek Clay. He had been in the company of Spence and the other young people. It was what occurred during the course of his evidence that gave rise to the only matter raised in the appeal against conviction (although that was framed as two separate grounds). Before moving to that, it is convenient to record the defence case.

the defence case 8 The appellant gave evidence, the effect of which was as follows. Immediately before the incident he and Davis were walking in the street. They had come from Terrigal, where they had encountered somebody who was intoxicated, and, apparently, behaving oddly. They were imitating the behaviour of this person. They approached the pizza restaurant and saw a group of young people on the other side of the road. One of them called out to the appellant. He continued walking, although more decorously, and was then spoken to by Derek Clay, whom he knew. As a result, he and Davis crossed the road to speak to Clay. The appellant immediately asked Clay about Spence, whom the appellant did not then know. Spence identified himself. He was at that time "slouching on his car". On identifying himself he stood up and made a movement with his arm. The appellant grabbed his right arm, pulled Spence towards himself, and struck him with his left fist. When asked why he did this the appellant replied: "I didn't particularly like him and I was told that he was out to get me so to speak." 9 In cross-examination he said that he had been told that Spence had threatened to stab him (the appellant) but immediately added that he did not know whether that was true or whether his friends were "just trying to gee me up or not." He also said that he had asked Spence why he (Spence) had slept with his (the appellant's) girlfriend. 10 I return to the account of the events given by the appellant in his evidence in chief. The blow administered by the appellant knocked Spence back onto his car and caused him to spin to his side. He turned around and stood facing the appellant, who grabbed him again, and pulled him to the ground. Spence fell on top of the appellant who, by this time, was on his back. The appellant managed to get Spence in a headlock. A struggle ensued. The appellant asked Spence if he had a wallet. This, he said, was so he could look at his driving licence in order to ascertain who he was and where he came from. Spence, according to the appellant, struggled, the appellant let him go, and Spence ran off. 11 The appellant denied kicking Spence. He denied demanding jewellery (as had been asserted by some Crown witnesses) and denied taking either a chain or an earring. In cross-examination the appellant agreed that he had been unimpressed when he learned that Spence had had a relationship with his girlfriend while he was overseas, but denied that he had been "furious" about that. He said he was angry and upset, but did not know why.

the appeal 12 The appeal, as I have indicated, is founded upon some evidence given by Clay. In the first instance this evidence was adduced by counsel for the appellant in cross-examination of Clay. Apparently, counsel was attempting to demonstrate that Clay was biased against the appellant and therefore could not be believed. The transcript records that counsel asked Clay: "You are not on good terms with the accused as (sic) you?" 13 Clay said that he did not know and could not make "heads or tails of any of it". Counsel then asked: "You complain, don't you, of violence directed towards you by the accused?"

Clay responded to this with a question. He asked when the cross-examiner was referring to. Counsel persisted with the questioning. 14 This was, as the appellant's senior counsel on appeal (who did not appear for the appellant at the trial) acknowledges, a risky, even dangerous, tactic. That is because, at the time of the trial, the appellant was facing a second charge, of common assault, this time on Clay himself, allegedly committed on 1 March 2002. Counsel persisted in the questioning, finally eliciting from Clay the following: "When I've got elbowed in the head down at Terrigal?"

The line of cross-examination was completed with the following two questions and answers: "Q: That's what you claim?

A: Well, it did happen. That's why I'm claiming it, and I did go for facial reconstruction.

Q: What I am putting to you is that you are unfriendly disposed towards the accused? A: Well I have seen him after all this has happened and I don't think I've been unfriendly to him." 15 As a consequence, in re-examination, the Crown prosecutor asked Clay a series of questions directed to the alleged incident. The questions and answers are recorded in the transcript as follows: "Q: You were ten (sic) asked some questions by Mr Brown and gave some evidence about an incident where Jason Kemsley hit you with the elbow, his elbow, in your face?

A: Yeah, twice. Q: When did that incident occur?

A: That occurred down at Terrigal, I'm not quite sure of the dates, it's written in my statement. Q: Was it before or after this incident involving … A: After, after Andrew's incident. That's why I got the elbow because I said I was Andrew's friend.

Q: How long was it after Andrew's incident?

A: I think it was only about a week or maybe a bit more, it wasn't that long.

Q: Whereabouts did this incident occur?

A: Down at Terrigal.

Q: What happened?

A: Jason was there, he was looking for Andrew and I said, something, he was looking for Andrew, he wanted to find Andrew and I said 'Well Andrew is my mate' and that sort of annoyed him and he told me to get out of Terrigal and elbowed me in the head on this side first and then I've turned around and he's telling me to get out of Terrigal. I'm like 'I'm not going anywhere, I live here.' He's elbowed me again on this side and I received, the guy that does the CT scans said five fractures …

Q: I will stop you there for a second. Was there any further conversation with Jason at that time?

A: No

Q: Did you go to the police and make a statement in relation to that incident?

A: Yeah. On the Sunday after that happened.

Q: Was that a different statement to the statement you made in relation to Andrew's matter?

A: Yes." 16 No objection was taken by counsel for the appellant to the re-examination. It is impossible to explain why counsel for the appellant asked the original questions of Clay. The fact was (as this court was told, without dissent, by senior counsel who now appears for the appellant) the appellant had been charged with an assault on Clay. Reference to the charge was contained in the brief of evidence served on the appellant's legal representatives. Other than what follows, the statements provided did not make any reference to the nature of any injuries alleged to have been sustained by Clay in the 1 March incident, and certainly made no reference to medical treatment that could be called "facial reconstruction". Senior counsel quoted from the statement made by Clay in relation to the incident, in which he said: "As a result of this assault I have bruising to the left and right sides of my face. I am soar (sic) on my mouth and most of my face area."

Further, if it were alleged that injuries requiring "facial reconstruction", or amounting to "five fractures" had been caused to Clay, it would be a matter of some surprise that the appellant was charged with assault (common assault) and not something more serious. That, however, is beside the point. No further reference was made to the evidence of the 1 March incident either in the evidence, the addresses, or the summing up. From this, it might reasonably be inferred that all participants were aware of the damaging nature of the evidence, and decided to avoid adverting to it further.

the grounds of appeal 17 The grounds of appeal against conviction are framed as follows: "1 The trial proceedings miscarried by reason of the introduction into evidence of an allegation of a separate assault, said to have been committed by the appellant, on a different date from the offence charged upon prosecution witness named Derek Bruce Clay in circumstances unrelated to the offence charged. 2 The trial proceedings miscarried by reason of the fact that a series of questions asked by the learned Crown Prosecutor in re-examination of the witness Derek Bruce Clay which were not properly the subject of re-examination." 18 The grounds of appeal present their difficulties for the appellant, as senior counsel recognised. In the ordinary course, evidence that an accused person has been charged with another offence, particularly one of the same general nature as the charge in respect of which he/she is on trial, would be rigorously excluded. But it is not so easy to pin-point any basis (in the present circumstances) on which the evidence could be said to be inadmissible. Part 3.8 of the Evidence Act 1995 deals with character evidence in criminal proceedings. But there is nothing contained within that Part that renders the evidence adduced from Clay inadmissible. Part 3.6 of the Evidence Act includes a section imposing constraints upon the use of "tendency" evidence. But, in the Dictionary to the Evidence Act, "tendency evidence" is defined as evidence adduced "for the purpose" of proving that a person has had a tendency to act in a particular way, or to have a particular state of mind. That certainly was not the purpose for which this evidence was adduced, even though it may, coincidentally, have had that effect. 19 It is, however, in my opinion, quite clear that, in the ordinary course of a criminal trial, evidence of this kind would not be given before a jury. In the unlikely event that the Crown sought to adduce such evidence, it would, ordinarily, raise questions under ss135 and 137 and could be expected to be excluded in the exercise of the powers and discretions conferred by one or both of those sections. But here the evidence was in the first instance adduced by the appellant's own counsel. Senior counsel who appears on the appeal accepts that he can make no real complaint about the questions asked of Clay in cross-examination. He has not gone so far as to argue that the cross-examination amounted to incompetence of the kind considered in R v Birks (1990) 19 NSWLR 677. 20 In oral argument, in answer to a question, senior counsel contended that the evidence was inadmissible as not being relevant to any issue in the proceedings. However, the question of bias was raised and was a matter of relevance once it was raised and, in my opinion, both the evidence adduced in cross-examination and in re-examination could not be excluded on the relevance ground. 21 As I understand the argument advanced on behalf of the appellant, it had two limbs. The first is that, whoever should bear the blame for what occurred, the evidence was so damaging to the appellant as to give rise to a miscarriage of justice. The second limb is more specific. Senior counsel has argued that, in the proper exercise of the prosecutorial function, the Crown Prosecutor ought not to have taken advantage of the situation that was created, in pursuing the matter in re-examination. 22 I accept that the questions asked by the appellant's counsel were foolhardy. I can see no possible forensic advantage in his raising the subject at all. Clearly, he sought to demonstrate bias towards the appellant on the part of Clay. But to attempt to suggest bias on the part of a witness, the bias being attributable to an incident which resulted in the appellant's being charged with an offence of violence (even low level violence) could not conceivably advance the defence case. That proposition gains more strength when it is borne in mind that the offence for which he was on trial was also an offence of violence. I further accept that, the appellant's counsel having taken the course he did, in fairness it would have been better had the Crown Prosecutor exercised the restraint the prosecution role demands and forborne to follow up what must have appeared to be a gift handed to him by the appellant's counsel. 23 In that regard, however, it must also be borne in mind that the Crown Prosecutor had to make a forensic decision about what to do about the matter that had been raised by counsel for the appellant. The Crown Prosecutor had no way of anticipating what the appellant might say in the defence case on the subject of bias and had to consider dealing with what had been raised by the appellant. 24 What I cannot accept is that error in the criminal process has been established or that a miscarriage of justice has occurred. 25 The jurisdiction of this court to interfere with a conviction is conferred by s6 of the Criminal Appeal Act 1912. It is worth returning to the terms of that section. This Court is to allow an appeal against conviction: "… 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. …" 26 The section also contains a proviso that, even where this court is of the opinion that the point or points raised by the appeal might be decided in favour of the appellant, this court may dismiss the appeal if it considers "that no substantial miscarriage of justice has actually occurred". 27 Returning to those words of the section which permit this court to set aside a verdict: it has not been argued that the verdict was unreasonable; or that it could not be supported having regard to the evidence; or that the verdict should be set aside on the ground of the wrong decision of any question of law. There was no relevant decision on any question of law (including admissibility of evidence). Indeed, no error is attributed to the trial judge. The only ground provided for by the opening words of s6 which could conceivably give rise to the appeal is the ground that there has been a miscarriage of justice. The appellant is therefore thrown upon attempting to establish some miscarriage of justice other than those specified in the section. A consideration of that proposition requires a more detailed analysis of the evidence, both in the Crown case and the defence case. 28 It is convenient to note the effect of the evidence given by the appellant himself. In large measure it established a good deal of the Crown case. The appellant's account of the fracas with Spence, in my opinion, is capable of establishing that he assaulted Spence. On his own evidence, when he had asked for Spence to be identified, Spence stood up and "made a movement with his arm". This prompted the appellant to grab Spence's arm, pull Spence towards him, and strike him. His evidence in chief as to his reason for this was that he didn't particularly like Spence and he had been told that Spence was out to get him. He gave no evidence that could suggest that Spence initiated the violence, or even retaliated. 29 What was at issue between the Crown and the defence was the theft of jewellery, this being the subject of the robbery alleged. 30 The led the judge, in his summing up, to direct the jury as follows: "Now in this particular case the real issue as I understand it is, has the Crown satisfied you beyond reasonable doubt, (i), that the accused took from the person of Andrew Spence the necklace, and/or the earring, any one of them will do, and in addition that the accused at that time had the intention permanently to deprive Andrew Spence of one or both of those items." 31 The evidence that the appellant had taken the jewellery came from a number of witnesses. First, there was Spence himself, and I have already referred to his evidence on the subject. Clay's evidence was that the appellant asked Spence if he had a wallet, that Spence replied that he did not, and had no money, and that the appellant then said: "Oh that necklace will do",

and that the appellant then ripped the necklace from Spence, and had then ripped the earring from Spence's ear. Daniel Mackie gave evidence that the appellant grabbed the chain from Spence's neck and ripped it off. Daniel Foster said that he heard the appellant ask Spence if he had a wallet or a necklace but said no more about either item. Sean Foster gave evidence to the same effect, but added that the appellant reached down and grabbed Spence's necklace and put it in his pocket. Bianca Crowley, who was Spence's girlfriend, did not describe seeing the jewellery removed, but said that she accompanied Spence to the hospital where she noticed that his face was swollen, he was bruised, he had blood off his ear and that his earring and necklace, both of which he customarily wore, were missing. John Thom also gave evidence that the appellant demanded Spence's money and his wallet and grabbed the chain of Spence's necklace and ripped it off. 32 On this evidence, the Crown case was overwhelming that the appellant had taken Spence's jewellery in the manner described. That, however, has to be balanced against two aspects of the prosecution evidence. The medical practitioner who examined Spence at the Gosford Hospital made no mention of any damage to either of his ears. Constable Patterson made observations of Spence when he reported the incident and noticed bruising, grazes and abrasions but made no mention of any injury to or bleeding from his ear. 33 Constable Patterson took photographs of Spence, but these do not include a photograph specifically of his ear. In cross-examination Spence said that he had not drawn the constable's attention to the injury to his ear because he was too shaken up at the time. He agreed that he had not told the doctor who examined him about the ear injury. This, he said, was because he was more worried about his facial features which were very sore and causing difficulty with breathing. 34 Notwithstanding the absence of any reference by Constable Patterson or the doctor to the ear injury, I am satisfied that the jury could not have failed to accept the evidence given by every one of the lay witnesses, all of which was consistent. There was, therefore, no miscarriage of justice in the conviction of the appellant. I emphasise that this is not an application of the proviso to s6 of the Criminal Appeal Act: the only basis on which this court could set aside a conviction is if a miscarriage of justice has been established. The appellant has not crossed that threshold. I would, accordingly, dismiss the appeal against conviction.

the application for leave to appeal against sentence 35 S95(1) of the Crimes Act 1900 provides a maximum penalty of 20 years' imprisonment for the offence. The appellant was sentenced to imprisonment for two years with a non-parole period of one year. 36 He was born on 11 August 1983 and was eighteen years of age at the time of the offence. He had a record, which included two previous offences of common assault in respect of both of which he was dealt with in the Children's Court. He also had a previous offence of wielding a knife in a public place, in respect of which he was required to perform 80 hours of community service; another of stealing a motor vehicle and one of break, enter and steal. In respect of these, he was, respectively, placed on probation for 18 months and ordered to pay compensation of $200, and sentenced to the rising of the court. He had an offence of larceny (shoplifting) in respect of which he was fined $100, and a charge of possession of a prohibited drug in respect of which, again, he was fined. 37 A brief pre-sentence report, prepared by the Duty Officer following the appellant's conviction, was put before the court. The officer found the appellant unsuitable for the sentencing options of a community service order or imprisonment to be served by way of periodic detention by reason of what was described as "chronic cannabis abuse issues". The source of this information was not identified in the report and the officer recorded that the appellant denied current cannabis abuse. The appellant's mother gave evidence in the sentencing proceedings. She said that the appellant was in receipt of a disability pension, the reason for this being a diagnosis that he suffered from attention deficit disorder. 38 He has a younger half brother who suffers from cerebral palsy and he has been of considerable assistance to his mother in relation to that child. He had performed well at school, "always top of his class". He is now the father of a child for whom he provides some financial support, but very little more emerged in the evidence about this. 39 The appellant's mother confirmed the observation of the Probation and Parole Service Officer that the appellant had developed a dependency on cannabis, and this was the reason he had been overseas prior to the offence. He had been sent to relatives in the Czech Republic in an endeavour to remove him from the cannabis environment. His mother considered that he required professional assistance in relation to his drug problem, and said that the family was prepared to meet the costs. His mother identified the appellant's girlfriend as the source of the information given to the Probation and Parole Service Officer, but said that the level of cannabis use described by her was exaggerated, and this had been done in order to assist the appellant. The appellant has been assessed by a clinic (the nature of which was not made clear) but it had recommended further assessment and counselling "on a needs basis". 40 In support of the application for leave to appeal, reliance was placed principally upon the appellant's youth at the time of the offence, and the principle that full-time imprisonment should only be used, particularly in the case of young people, as a last resort when no other form of sentencing disposition is available to meet the relevant circumstances of the case for the purpose of sentence. 41 This creates some difficulty for the appellant, given his assessment as unsuitable for community service or periodic detention. Counsel who appeared for the appellant at the sentencing proceedings therefore submitted that any sentence of imprisonment imposed should be suspended. 42 The sentencing judge made some findings that were adverse to the appellant. None of these was the subject of challenge. Inter alia, he said: "The impression I gained of the prisoner from having both seen and heard him in the witness box is that he is an angry young man who gained satisfaction from assaulting people. He seeks to justify this by saying that he has to get in first and this impression is certainly supported by his record. All one can say about his past record is that there is nothing there which entitles him to any special leniency."

43 In relation to the gravity of the offence, the sentencing judge said: "On behalf of the prisoner it was submitted that this offence is at the lowest end of the range of this class of crime. It was pointed out that there was no premeditation or planning, no predatory conduct. All I can say about that is this, he had obviously planned for sometime to locate the victim and to assault him and, once he found out where the victim was, he proceeded to execute this plan." 44 In relation to a submission that the offence "arose under circumstances of opportunism", the appellant not having known that Spence would be in the street at the time, the sentencing judge said: "That is quite true but as soon as it was known, the pre-existing plan was immediately put into operation." 45 He accepted that the primary purpose of the appellant's conduct was not theft, but that the jewellery was taken to humiliate and hurt Spence. His Honour did not regard that as a circumstance of mitigation. He accepted that the evidence did not disclose severe injury to Spence. He appeared to accept a submission that the appellant was: "emotionally immature, needing ongoing professional assistance, and that his period in custody has been a lesson to him."

He considered that the appellant had shown: "absolutely no remorse or contrition for his offence."

He said: "Even during his evidence he treated his admitted assault upon the victim as totally justified in his mind." 46 His Honour, accordingly, rejected the submission that the sentence should be suspended. 47 In sentencing the appellant as he did the sentencing judge found special circumstances pursuant to s44(2) of the Crimes (Sentencing Procedure) Act 1999 justifying departure from the ratio between the head sentence and the non-parole period mentioned in that subsection. The reasons for this finding included the appellant's youth, his need to address psychological problems by anger management and cannabis dependency treatment. He considered that these factors were best treated whilst the appellant was at liberty on parole while there existed the sanction of a return to prison in the event of his non-compliance with directions. 48 I have carefully considered all of the matters argued on behalf of the appellant. I have come to the view that, although another judge may have imposed a lower sentence, the sentence imposed has not been shown to be outside the range legitimately available to the sentencing judge. I would, accordingly, grant leave to appeal against sentence, but dismiss the appeal. 49 The orders I propose are: (i) appeal against conviction dismissed;

(ii) leave to appeal against sentence granted, appeal dismissed. 50 WOOD CJ AT CL: I agree with the orders proposed and the reasons for them. 51 ADAMS J: I also agree. 52 WOOD CJ AT CL: The orders of the Court will, therefore, be as proposed.

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