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Court of Criminal Appeal 30 June 1999

R v PAEK

[1999] NSWCCA 184

Drugs
CRIMINAL LAW

Citation: R v PAEK [1999] NSWCCA 184
Court: New South Wales Court of Criminal Appeal
Date: 30 June 1999
Judge(s): Grove J, Abadee J, Barr J

Background

The appellant was convicted by a District Court jury of supplying not less than the commercial quantity of a prohibited drug, specifically 440 grams of heroin. Judge Luland QC sentenced her to eight years' imprisonment with a minimum term of five years. The appellant pursued an appeal against conviction only, having abandoned her application for leave to appeal against sentence.

The Crown case rested significantly on the evidence of a man who had arranged the drug transaction and who had received a sentencing discount in exchange for his cooperation. The appellant gave a competing account, denying any knowledge that drugs were involved and asserting she had been unwittingly used as a courier by someone she had recently befriended.

The central dispute at trial was therefore a direct contest between the accounts of the Crown witness (who was himself an accomplice in the transaction) and the appellant. Physical evidence placed heroin at the appellant's feet in the vehicle when police made arrests.

  • Whether the trial judge was required to direct the jury that it would be dangerous to convict on the uncorroborated evidence of an accomplice
  • Whether the directions actually given were adequate to warn the jury of the potential unreliability of the Crown witness's evidence
  • Whether any failure to give a formal accomplice warning direction constituted a ground of appeal warranting a new trial

Decision

The Court of Criminal Appeal unanimously dismissed the appeal. Barr J, with whom Grove J and Abadee J agreed, held that there is no fixed rule requiring a specific direction in particular terminology whenever an accomplice gives evidence. Citing the High Court's decision in Longman v The Queen and the Court of Criminal Appeal's decision in Regina v Johnston, the court confirmed that a warning is required only where it is necessary to avoid a perceptible risk of a miscarriage of justice, and that each summing-up must be tailored to the circumstances of the individual case.

The court found that the trial judge's summing-up had, in substance, adequately warned the jury about the potential unreliability of the Crown witness's evidence and the reasons for that unreliability, including the witness's status as an accomplice and the sentencing discount he had received. The appellant's good character and the oath-against-oath nature of the trial did not, in the court's view, independently require a formal accomplice corroboration warning.

A further and independent reason also supported dismissal of this ground. Had the trial judge given the direction sought, he would have been obliged to direct the jury's attention to evidence capable of corroborating the Crown witness, including the heroin found at the appellant's feet and the undisputed facts about her role in carrying the purchase money to the supplier and returning with the drugs. The court observed that any reasonable jury would have treated that evidence as corroboration of a very strong kind, which may itself explain why defence counsel did not request the direction at trial.

Orders Made

  • Leave to appeal refused
  • Appeal dismissed

Key Takeaways

  • No absolute rule requires a trial judge to direct a jury that it would be dangerous to convict on the uncorroborated evidence of an accomplice; the obligation to warn arises only where necessary to avoid a perceptible risk of a miscarriage of justice on the facts of the particular case.
  • A summing-up that adequately identifies the witness's status as an accomplice, the incentive arising from a sentencing discount, and the need for careful scrutiny of that evidence may satisfy the duty to warn without resort to a fixed formula or incantation.
  • The Court of Criminal Appeal confirmed that each summing-up should be tailored to the individual case rather than follow a prescribed template, consistent with the approach endorsed by Spigelman CJ in Regina v Johnston and Lord Hailsham in Regina v Spencer.
  • Where a formal accomplice warning direction would have required the judge to highlight powerful corroborating evidence, the absence of that direction may not occasion a miscarriage of justice and may itself be tactically explicable.
  • In dismissing the appeal, the court applied the principle that the absence of a specific direction is not a ground for appeal where the summing-up as a whole adequately protected the accused's right to a fair trial.

Legislation and Cases Referenced

Legislation:
- Evidence Act, ss 164, 165(1)(d), 165(2)(c), 165(4)

Cases:
- Regina v Yee Kam Lau, Court of Criminal Appeal, 2 December 1998 (unreported)
- Longman v The Queen (1989) 168 CLR 79
- Regina v Johnston (1998) 45 NSWLR 362
- Regina v Spencer [1987] AC 128