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Court of Criminal Appeal 23 July 1999

Regina v Gilbert Adam

[1999] NSWCCA 197

Also reported as 47 NSWLR 267
Homicide
CRIMINAL LAW MURDER APPEAL AGAINST CONVICTION VERDICT WHETHER UNSAFE AND UNSATISFACTORY CRIMINAL LAW & PROCEDURE

Citation: Regina v Gilbert Adam [1999] NSWCCA 197
Court: NSW Court of Criminal Appeal
Date: 23 July 1999
Judge(s): Spigelman CJ, James J, Bell J

Background

The appellant was convicted of the murder of an off-duty police officer killed in a hotel car park in Fairfield in April 1987. The killing arose from a confrontation between a group of young men of Assyrian background and off-duty police officers who had gathered at the Cambridge Tavern Hotel. The appellant was tried alongside his brother, who was acquitted of murder but convicted of a lesser offence.

The appellant was not arrested until July 1997, over a decade after the killing. He was convicted following a Supreme Court trial before Wood CJ at CL and a jury, and was sentenced to 28 years' penal servitude with a minimum term of 21 years.

He appealed against both conviction and sentence on three grounds: that the verdict was unsafe and unsatisfactory, that the trial judge should have discharged the jury following an inadvertent prejudicial event, and that certain evidence was wrongly admitted.

  • Whether the verdict of guilty was unsafe and unsatisfactory on the evidence
  • Whether the trial judge erred in refusing to discharge the jury after potentially prejudicial material came before it that had not been admitted into evidence, and whether any curative direction was adequate
  • Whether hearsay evidence was properly admitted under s 60 of the Evidence Act 1995 (NSW), including the question of whether the "purpose" under that provision is assessed subjectively or objectively
  • Whether prior representations were admissible under s 66 of the Evidence Act 1995 (NSW), which permits hearsay in criminal proceedings where the maker is available if the representation was made when the events were "fresh in the memory"

Decision

The Court rejected the ground that the verdict was unsafe and unsatisfactory. Applying the principles in M v The Queen (1994) 181 CLR 487, the Court was satisfied that the evidence, viewed as a whole, was sufficient to support the jury's conclusion. Witnesses gave accounts placing the appellant at the scene, and the jury was entitled to accept that evidence.

On the jury discharge application, the Court found no error in Wood CJ at CL's refusal to discharge. The trial judge gave a direction to address the prejudice arising from the inadvertent material, and the Court was satisfied that direction was adequate to cure any potential unfairness.

The Court addressed the operation of s 60 of the Evidence Act 1995, which allows evidence of a previous representation to be used as proof of an asserted fact if the evidence was admitted for another purpose. The Court confirmed that the relevant "purpose" for which evidence is tendered under s 60 is assessed objectively, not by reference to the subjective intention of the party calling the evidence.

On the s 66 ground, the Court considered the "fresh in memory" requirement for the admission of prior representations made by an available witness. The Court examined the applicable principles and was satisfied the trial judge had not erred in admitting the evidence in question. The third ground of appeal was rejected in its entirety, as was the application for leave to appeal against sentence.

Orders Made

  • Leave to appeal against sentence refused
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that the "purpose" test under s 60 of the Evidence Act 1995 (NSW) is assessed objectively, not by reference to the subjective intention of the party tendering the evidence.
  • Under s 66 of the Evidence Act 1995 (NSW), prior representations by an available witness are admissible in criminal proceedings only if made when the events were "fresh in the memory," and the Court examined what that standard requires in practice.
  • Where a trial judge gives a curative direction to address inadvertent exposure of the jury to material not in evidence, that direction can be sufficient to overcome the prejudice, and refusal to discharge the jury will not constitute error where the direction is adequate.
  • An appeal against conviction on the ground that a verdict is unsafe and unsatisfactory requires the appellate court to assess whether, on the whole of the evidence, it was open to the jury to be satisfied of guilt beyond reasonable doubt.
  • No submissions were advanced in support of the sentence appeal, and the Court declined to interfere with a sentence of 28 years' penal servitude, finding it within the range of the sentencing judge's discretion.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Criminal Appeal Act 1912 (NSW)
- Evidence Act 1995 (NSW), ss 60, 66

Cases
- M v The Queen (1994) 181 CLR 487
- Jones v The Queen (1997) 191 CLR 439
- Crofts v The Queen (1996) 186 CLR 427
- Lee v Regina (1998) 157 ALR 394
- Graham v The Queen (1998) 72 ALJR 1491
- Blewitt v The Queen (1988) 62 ALJR 503
- Waterford v The Commonwealth (1986-87) 163 CLR 54
- Hammer v S Hoffnung & Co Limited (1928) 28 SR (NSW) 280
- Regina v Hawes (1994) 35 NSWLR 294
- R v Philip Harold Bell (unreported, CCA, 8 October 1998)
- Regina v GAC (NSWCCA, 1 April 1997)
- Regina v Thompson (1964) QWN 61
- Regina v Hall (1986) 1 Qd R 462